In an October 20 piece in Time, attorney Adam Cohen discusses the contention by senatorial candidates John Raese of West Virginia and Joe Miller of Alaska that the federal minimum wage law is unconstitutional. Although it does not appear that either candidate will be joining the Senate, it is important to clarify the confusion manifested by Mr. Cohen in his attack on their position, for it demonstrates the Left’s continuing inability to understand the originalist constitutional critique of the modern Supreme Court and the federal regulatory state.
Mr. Cohen’s error begins when he asserts that finding the federal minimum wage to be unconstitutional means a return to the doctrine of the 1905 Lochner case. Lochner held that even states could not set a minimum wage. However, Lochner was actually overturned in 1937, not 1941, in the West Coast Hotel case which featured Justice Owen Roberts’ infamous “switch-in-time-that-saved-nine.” The 1941 case referred to in Mr. Cohen’s article (US vs. Darby) was about upholding the authority of the federal government to impose a “one-size-fits-all” national minimum wage under an expansive reading of the clause in the Constitution giving Congress the authority “to regulate commerce … among the several States.”
Prior to 1941 it was widely thought that the interstate commerce clause did not grant the federal government authority to set a one-size-fits-all national minimum wage. Indeed, in 1908 even Woodrow Wilson had written that that would be an inconceivable intrusion on the authority of the states. However, by 1941 a majority of the Supreme Court were Roosevelt New Dealers, and the federal minimum wage decision was simply one more of a string of post-1937 Supreme Court decisions which vastly expanded the economic regulatory power of the federal government under the interstate commerce clause far beyond anything contemplated by the framers.
The senatorial candidates are reflecting a growing recognition of the latter point, that the New Deal era Supreme Court’s expansion of federal power under the interstate commerce clause stretched that power far, far beyond any possible original understanding of the clause. The clause was only intended to permit the federal government to assure a national common market by overturning state laws which discriminated against other states’ products. Before Roosevelt’s appointees took over the Supreme Court, it was widely accepted even by New Deal supporters that a constitutional amendment would be required to expand federal regulatory power to the degree contemplated by New Deal laws such as a nation-wide minimum wage.
In making his confused equivalence, Mr. Cohen has overlooked the fact that Lochner stands on a very different constitutional ground than Darby. Rather than the interstate commerce clause, Lochner rests on Supreme Court decisions which read a “right of contract” into the “due process” clause of the 14th amendment. This approach, often called “substantive due process,” is essentially the same approach used in Roe vs. Wade, which was based on Supreme Court cases which read a “right of privacy” into the same “due process” clause of the 14th amendment.
The view that the Constitution should be interpreted in line with its original meaning, and only changed by the amendment process rather than Supreme Court dictates, condemns both Lochner and Darby. Just as Darby stretches the interstate commerce clause far beyond any reasonable original reading, Lochner also stretches the “due process” clause far beyond any reasonable original reading. The post-Civil War 14th amendment was about protecting the rights of newly freed blacks, and the “due process” clause was to assure them equal access to legal procedures such as trial by jury, not freeing white businessmen from state minimum wage laws.
Therefore, the argument in Mr. Cohen’s piece about the desirability of minimum wage laws is largely beside the point since, under an originalist reading of the Constitution, rejecting a nation-wide minimum wage law as an unconstitutional over-extension of the interstate commerce clause would not impinge on the states’ right to enact minimum wages. Further, from a policy point of view, state-based minimum wages rather than a one-size fits-all national minimum wage would be preferable because they could account for local economic and cost of living conditions which vary widely across the nation.
Many who value the rule of law and respect the integrity of the Constitution are rejecting the power the Supreme Court arrogated to itself in decisions such as both Darby and Lochner to constitute itself a continuous constitutional convention, self-empowered to make massive changes to the clear original meaning of constitutional provisions such as the interstate commerce and due process clauses. Such massive changes should only be made by the amendment process. Chapter 5 of Timely Renewed discusses how to amend the interstate commerce clause to conform it more closely to its original meaning, which will promote local business and regional diversity in economic regulation over our current big business dominated and constitutionally questionable national regulatory model. Chapter 9 of Timely Renewed attempts the same for the 14th amendment, by closing the massive open-ended linguistic loophole which the Supreme Court has used to write entire new bodies of law into the two words of the due process clause, bodies of law unrelated to any possible original meaning of that phrase.
Of Minimum Wages, Lochner and Darby; or Understanding How to Read the Constitution Originally
In an October 20 piece in Time, attorney Adam Cohen discusses the contention by senatorial candidates John Raese of West Virginia and Joe Miller of Alaska that the federal minimum wage law is unconstitutional. Although it does not appear that either candidate will be joining the Senate, it is important to clarify the confusion manifested by Mr. Cohen in his attack on their position, for it demonstrates the Left’s continuing inability to understand the originalist constitutional critique of the modern Supreme Court and the federal regulatory state.
Mr. Cohen’s error begins when he asserts that finding the federal minimum wage to be unconstitutional means a return to the doctrine of the 1905 Lochner case. Lochner held that even states could not set a minimum wage. However, Lochner was actually overturned in 1937, not 1941, in the West Coast Hotel case which featured Justice Owen Roberts’ infamous “switch-in-time-that-saved-nine.” The 1941 case referred to in Mr. Cohen’s article (US vs. Darby) was about upholding the authority of the federal government to impose a “one-size-fits-all” national minimum wage under an expansive reading of the clause in the Constitution giving Congress the authority “to regulate commerce … among the several States.”
Prior to 1941 it was widely thought that the interstate commerce clause did not grant the federal government authority to set a one-size-fits-all national minimum wage. Indeed, in 1908 even Woodrow Wilson had written that that would be an inconceivable intrusion on the authority of the states. However, by 1941 a majority of the Supreme Court were Roosevelt New Dealers, and the federal minimum wage decision was simply one more of a string of post-1937 Supreme Court decisions which vastly expanded the economic regulatory power of the federal government under the interstate commerce clause far beyond anything contemplated by the framers.
The senatorial candidates are reflecting a growing recognition of the latter point, that the New Deal era Supreme Court’s expansion of federal power under the interstate commerce clause stretched that power far, far beyond any possible original understanding of the clause. The clause was only intended to permit the federal government to assure a national common market by overturning state laws which discriminated against other states’ products. Before Roosevelt’s appointees took over the Supreme Court, it was widely accepted even by New Deal supporters that a constitutional amendment would be required to expand federal regulatory power to the degree contemplated by New Deal laws such as a nation-wide minimum wage.
In making his confused equivalence, Mr. Cohen has overlooked the fact that Lochner stands on a very different constitutional ground than Darby. Rather than the interstate commerce clause, Lochner rests on Supreme Court decisions which read a “right of contract” into the “due process” clause of the 14th amendment. This approach, often called “substantive due process,” is essentially the same approach used in Roe vs. Wade, which was based on Supreme Court cases which read a “right of privacy” into the same “due process” clause of the 14th amendment.
The view that the Constitution should be interpreted in line with its original meaning, and only changed by the amendment process rather than Supreme Court dictates, condemns both Lochner and Darby. Just as Darby stretches the interstate commerce clause far beyond any reasonable original reading, Lochner also stretches the “due process” clause far beyond any reasonable original reading. The post-Civil War 14th amendment was about protecting the rights of newly freed blacks, and the “due process” clause was to assure them equal access to legal procedures such as trial by jury, not freeing white businessmen from state minimum wage laws.
Therefore, the argument in Mr. Cohen’s piece about the desirability of minimum wage laws is largely beside the point since, under an originalist reading of the Constitution, rejecting a nation-wide minimum wage law as an unconstitutional over-extension of the interstate commerce clause would not impinge on the states’ right to enact minimum wages. Further, from a policy point of view, state-based minimum wages rather than a one-size fits-all national minimum wage would be preferable because they could account for local economic and cost of living conditions which vary widely across the nation.
Many who value the rule of law and respect the integrity of the Constitution are rejecting the power the Supreme Court arrogated to itself in decisions such as both Darby and Lochner to constitute itself a continuous constitutional convention, self-empowered to make massive changes to the clear original meaning of constitutional provisions such as the interstate commerce and due process clauses. Such massive changes should only be made by the amendment process. Chapter 5 of Timely Renewed discusses how to amend the interstate commerce clause to conform it more closely to its original meaning, which will promote local business and regional diversity in economic regulation over our current big business dominated and constitutionally questionable national regulatory model. Chapter 9 of Timely Renewed attempts the same for the 14th amendment, by closing the massive open-ended linguistic loophole which the Supreme Court has used to write entire new bodies of law into the two words of the due process clause, bodies of law unrelated to any possible original meaning of that phrase.