tenthers

Lochner v. New York is widely viewed as one of the worst Supreme Court decisions in American history. It is taught in law schools, alongside decisions upholding segregation and permitting Japanese detention camps, in order to instruct budding lawyers on how judges should not behave. Even Robert Bork, the failed, right-wing Supreme Court nominee who claimed women “aren’t discriminated against anymore”, called Lochner an “abomination” that “lives in the law as the symbol, indeed the quintessence of judicial usurpation of power.”

Lochner fabricated a so-called right to contract in order to strike down a New York law preventing bakery owners from overworking bakers, but its rationale has implications for any law intended to shield workers from exploitation. In essence, Lochner established that any law that limits any contract between an employer and an employee is constitutionally suspect. If desperation forces someone to agree to work 18 hours a day, seven days a week, for a dollar a day in a factory filled with toxic air, then courts must treat that law with heavy skepticism. Not every workplace law was struck down during the so-called Lochner Era — the justices of that era sometimes valued sexism more than they valued exploiting workers, for example — but Lochner placed any law benefiting workers on constitutionally weak footing. Needless to say, the “right to contract” it invented appears nowhere in the Constitution.

Nevertheless, Sen. Rand Paul (R-KY) took several minutes out of his lengthy talking filibuster yesterday to praise this “abomination” of a decision on the Senate floor:

You get to the Lochner case. The Lochner case is in 1905. The majority rules 5-4 that the right to make a contract is part of your due process. Someone cannot deprive you of determining how long your working hours are without due process. So President Obama’s a big opponent to this, but I would ask him — among the other things I’m asking him today — to rethink the Lochner case… . I think it’s a wonderful decision.

Paul’s speech also includes a somewhat rambling attempt to claim that Lochner helped “end Jim Crow,” a claim that would cause anyone with even a rudimentary understanding of civil rights history to scratch their head. Lochner was decided in 1905, and, while Paul is correct that the Lochner Era justices very occasionally struck down discriminatory laws, Jim Crow was still very much alive when Lochner was overruled in the 1930s. The Supreme Court decision that did the most to eradicate Jim Crow — Brown v. Board of Education — rested on the Constitution’s guarantee that no person shall be denied the “the equal protection of the laws,” not on some fabricated right to contract. And Brown alone was insufficient to overcome the campaign of “massive resistance” segregationists mounted in defense of Jim Crow.

What finally killed American apartheid was big, centralized government of the kind Paul and his fellow tea partiers love to hate. The Civil Rights Act of 1964 required business owners to contract with minorities — something that would undoubtedly been unconstitutional under Lochner. And, of course, the same Voting Rights Act that is now endangered in the Supreme Court tore down Jim Crown voter exclusions. Sen. Paul, for his part, has incorrectly suggested that the Civil Rights Act violates the Constitution.

Paul’s endorsement of Lochner reflects a disturbing evolution in Tea Party thought. For much of Obama’s first term, Tea Party conservatives rallied behind “tentherism,” the false belief that most of what the federal government does is unconstitutional.  Unlike tentherism, which applies only to federal laws, Lochnerism prevents both the federal government and the states from enacting necessary legislation.

"Wonderful decision" my ass, Rand!

h/t: Ian Millhiser at Think Progress Justice

Washington state house votes to nullify federal ban on industrial hemp farming and production. 97-0 vote.

HB1888 would ignore federal restrictions on the farming of hemp within the state. 

A new farm bill signed into law by Pres. Obama allows a few states to start limited research and growing of hemp, but WA state could join CO, OR and VT - in telling the feds to butt out completely.

Experts count as many as 25,000 uses for industrial hemp, including food, cosmetics, plastics and bio-fuel. The U.S. is currently the world’s #1 importer of hemp fiber for various products, with China and Canada acting as the top two exporters in the world.

FULL REPORT HERE

Our Liberty Teeth

Traditionally, most people think of firearms as “liberty teeth,” thanks to the apocryphal quote of Washington.  I’m grateful that this is not our only defense against tyranny, because our little pea shooters don’t amount to much, compared to the massive firepower recklessly flaunted by the federal government.

No, our greatest defense against central tyranny is state resistance, aka “nullification.”

You’ve probably heard of it before, in the media’s insulting, dismissive way, but nullification has the most noble beginnings.  It was first used in the context of re-asserting free speech against the federal “Alien and Sedition Acts,” and it was used most notably by the northern states that did not want to be forced by federal laws to capture and return escaped slaves.

These days, nullification is being put into action on a great number of issues, and is very effective.  You might want to contact your state congress representatives and senators, and tell them you want them to nullify your most hated federal laws.

I think the media is being snide because nullification actually works.

You spend all day in a hotel with the CPAC people and you begin to feel yourself slipping into The Bubble. You really have to give them credit for what they’ve built — a completely self-contained universe with its own laws and its own history, eminently comfortable and eminenly seductive. Nowhere is this more obvious in their tacit devotion to the government of the Articles of Confederation. You see, all of them here are devoted Tenthers, which is better than calling yourself a “states-rights person,” because that still has some unpleasant resonance with events in Mississippi in 1962, although it’s coming back into vogue. Rick Perry is a goofily monomaniacal on the subject. There have been two examples in this country’s history of attempts to govern on a radical states rights basis — one was the Articles, which brought so much misery that James Madison and a whole lot of other folks euchred the country into throwing it out in favor of the new federal Constitution; and the Confederate States of America which, by the third year of its existence, consisted of little more than the Army of Northern Virginia.

Yet, there was Virginia attorney-general Ken Cuccinelli, who is suing the federal government over the mandate in the Affordable Health Care Act, up there on Thursday, getting an award and saying, quite seriously, “You all know about separation of powers, right? Well, I look at federalism as a kind of vertical separation of powers, as a check on federal power.” And thus do New York and New Jersey once again stare daggers at each other across the Hudson because of import duties. But I didn’t realize how round and complete this was until I sat through a movie called Nullification: The Original Remedy, a production of Citizens United, who will this summer be bringing you the blockbuster How Much Is That Romney In The Window?

In this movie, I learned that James Madison and Thomas Jefferson were the original Nullifiers, through their work against the Alien and Sedition Acts in the Kentucky and Virginia Resolutions. (Jefferson was a bit of a whackadoo on the subject, but Madison spent much of his dotage trying to get his fingerprints off the doctrine.) I also learned that the abolitionists were the true Nullifiers, through their resistance to the Fugitive Slave Act. so Nullification was really a civil rights movement before its time. […]

If you ever wondered what a 21st century nullification crisis would look like, look no further than Missouri. One hundred and forty eight years after the end of the Civil War, the New York Times reports, “the Republican-controlled Missouri legislature is expected to enact a statute next month nullifying all federal gun laws in the state and making it a crime for federal agents to enforce them.” Meanwhile, the Show Me State is doing everything it can to effectively block implementation of the Affordable Care Act.

Like Texas, Mississippi, Arizona and a host of other states, Missouri is seemingly turning to the Confederate Constitution as the law of the land. Hoping to override Democratic Governor Jay Nixon’s veto, Missouri Republicans are aiming at the U.S. Constitution’s Supremacy Clause:

Richard G. Callahan, the United States attorney for the Eastern District of Missouri, is concerned. He cited a recent joint operation of federal, state and local law enforcement officials that led to 159 arrests and the seizing of 267 weapons, and noted that the measure “would have outlawed such operations, and would have made criminals out of the law enforcement officers.”

And not just criminals. As the

Times explained, “A Missourian arrested under federal firearm statutes would even be able to sue the arresting officer.”

While the Missouri GOP is seeking the de jure nullification of federal firearms laws, Show Me State Republicans are also pursuing the de facto nullification of Obamacare.

An estimated 877,000 people in Missouri are currently uninsured. But despite Governor Nixon’s best effort, Republican legislators block the expansion of Medicaid, leaving 267,000 in Missouri stuck in the “coverage gap.” All told, some 5.5 million people in GOP-dominated states, McClatchy explained, will find themselves  trapped in “a bureaucratic twilight zone where people with poverty-level incomes don’t qualify for Medicaid and can’t get tax credits to help buy coverage on the new insurance marketplaces.”

But in Missouri, things will be even worse. Republicans there didn’t just refuse to accept billions in federal Medicaid dollars or set up their own state health care exchange. They are actively undermining any outreach or customer service for Show Me State residents seeking information about or help enrolling in new insurance plans made possible by the Affordable Care Act.

The framers of our Constitution met in 1787 because the weak national governance adopted by the Articles of Confederation utterly failed. Their goal, in their own words, was to ensure that the federal government had the power to “legislate in all cases for the general interests of the Union, and also in those to which the States are separately incompetent.” National leaders must have the ability to address national problems, and this is especially true with respect to the national economy. As the Supreme Court explained very early in American history, there is “no sort of trade” that our national leaders cannot regulate, and the the power to regulate something “implies in its nature full power over the thing to be regulated,” so long as Congress does not trample the individual protected elsewhere in the Constitution.

Few living Americans have done more to undermine this vision than Randy Barnett, a Georgetown law professor and one of the leading architects of the lawsuits challenging the Affordable Care Act. In an interview with NPR yesterday, Barnett admitted just how far he’d like to go in reimagining the Constitution if his attack on health reform succeeds.

The “New Deal cases” Barnett objects to rejected the fake constitution that dominated the pre-New Deal era. If Barnett succeeds in restoring this fake constitution, he would usher in a far meaner and less prosperous America:

  • Child Labor: One of the seminal cases from this discredited era is Hammer v. Dagenhardt, which struck down a national child labor law. If the New Deal cases Barnett despises were overruled, the longstanding federal protections against exploiting child workers would cease to exist.
  • No Minimum Wage: A key New Deal case, United States v. Darby, upheld a national minimum wage and overtime laws. If Darby were overruled, these and other basic labor protections would also cease to exist.
  • Whites-Only Lunch Counters: The Court also relied on cases like Darby in upholding basic civil rights protections, including the ban on whites-only lunch counters. Barnett’s fake constitution would almost certainly eliminate most of the legislative progress of the Civil Rights Era.
  • The Right to Organize: The pre-New Deal justices also struck down laws ensuring workers’ right to organize into labor unions. Restoring their fake constitution would bring this decision back to life.

In other words, the fake constitution espoused by the anti-health reform case’s chief architect would roll back nearly one hundred years of progress — leaving poor children, minorities, workers and women out in the cold.

h/t: Ian Millhiser at Think Progress Justice