Cars, Cows and Federalism
In this post criticizing a New York Times editorial on how a Justice Roberts might roll back commerce clause- based federal regulations, T. More says,
However, a personal distaste for child labor hardly is the point; the Times is addressing whether Roberts's judicial philosophy would render the federal government unable to enact legislation to prohibit child labor. I have a personal distaste for hate speech, but my understanding of the 1st Amendment doesn't permit for its prohibition.
As for whether it's utterly absurd that the states could prefer a lower standard for child labor regulation than that promulgated by the feds, even the federal standards have been criticized for being out-of-date and failing to recognize differences between minors and adult males (for example, in permissible exposure to pesticides during agricultural labor). Some states under-enforce federal immigration law in order to have a sufficient supply of labor for the picking season, so I don't find it impossible that they'd lower standards on child labor as well.
I suspect what T. More really finds objectionable is the idea that we would return to Industrial Revolution-era conditions, which is indeed ridiculous, but also not the editorial was talking about explicitly (though the authors may have wished to raise fear of it by implication). In the absence of federal regulation, states have the room to experiment, and those experiments can be good or bad.
To assume that a given state wouldn't lower the working age to 13 (Kansas lets girls get married before that age, which horrifies Nebraska) seems to me to ignore the diversity of needs and attitudes in different localities. Most of the kids who took driver's ed with me already had plenty of driving experience on back roads and pastures because that was the norm in East Texas, and the guy who sat in front of me in sophomore English had lost part of one finger to a cow he'd been milking. In contrast, none of my college friends from Northern Virginia got in a driver's seat until they were 15, nor had any of them dealt in animal husbandry.
Considering that part of the rationale for federalism rests on precisely this variation among states, I don't think a federalist honestly can claim that all the states would hew to the federal regulation in its exact letter if the Supreme Court declared it to be invalid. Probably none of them would return to the pre-federal regulation state of affairs, but a large number of federal regulations, being cut to fit the majority of states -- or just the states with the most influential representatives and lobbyists -- are not necessarily ideal for each one of the fifty. If the states might differ from the EPA regarding the environment, or from OSHA in matters relating to adult labor, why must they necessarily adhere to federal standards in the single area of child labor?
Does anyone believe we need the Federal government's help to stop those darned states (especially the red ones) from approving of child labor? Let's grant that some states would not adopt the position of the EPA if somehow we were to return to a federal government of limited powers (by, say, adopting something like that wildly moderate Justice O'Connor's position in Raich); they might even differ from the approach of OSHA. But CHILD LABOR? Were these people never read the story of the boy who cried wolf?T. More titles his post "Or, if he says he's against child labor, will you support him?"
However, a personal distaste for child labor hardly is the point; the Times is addressing whether Roberts's judicial philosophy would render the federal government unable to enact legislation to prohibit child labor. I have a personal distaste for hate speech, but my understanding of the 1st Amendment doesn't permit for its prohibition.
As for whether it's utterly absurd that the states could prefer a lower standard for child labor regulation than that promulgated by the feds, even the federal standards have been criticized for being out-of-date and failing to recognize differences between minors and adult males (for example, in permissible exposure to pesticides during agricultural labor). Some states under-enforce federal immigration law in order to have a sufficient supply of labor for the picking season, so I don't find it impossible that they'd lower standards on child labor as well.
I suspect what T. More really finds objectionable is the idea that we would return to Industrial Revolution-era conditions, which is indeed ridiculous, but also not the editorial was talking about explicitly (though the authors may have wished to raise fear of it by implication). In the absence of federal regulation, states have the room to experiment, and those experiments can be good or bad.
To assume that a given state wouldn't lower the working age to 13 (Kansas lets girls get married before that age, which horrifies Nebraska) seems to me to ignore the diversity of needs and attitudes in different localities. Most of the kids who took driver's ed with me already had plenty of driving experience on back roads and pastures because that was the norm in East Texas, and the guy who sat in front of me in sophomore English had lost part of one finger to a cow he'd been milking. In contrast, none of my college friends from Northern Virginia got in a driver's seat until they were 15, nor had any of them dealt in animal husbandry.
Considering that part of the rationale for federalism rests on precisely this variation among states, I don't think a federalist honestly can claim that all the states would hew to the federal regulation in its exact letter if the Supreme Court declared it to be invalid. Probably none of them would return to the pre-federal regulation state of affairs, but a large number of federal regulations, being cut to fit the majority of states -- or just the states with the most influential representatives and lobbyists -- are not necessarily ideal for each one of the fifty. If the states might differ from the EPA regarding the environment, or from OSHA in matters relating to adult labor, why must they necessarily adhere to federal standards in the single area of child labor?
posted by PG at 3:42 PM
2 Comments:
Presumably the "philosophy" behind the current majority reading of the Constitution is that the federal government should be setting the floor standards for child labor. None of the tinkering I suggest is possible until this reading is changed. You imply that the non-federalist reading of the Constitution can be described as a "philosophy," whereas whatever John Roberts thinks of the Constitution is not a "philosophy."
The question of what one believes the Constitution means is of course exactly what people are attempting to describe when they say X is So-and-So's "philosophy." The Times is deeply interested in Roberts's philosophy because it determines whether the federal government will continue to set the standards for child labor, among other areas, or whether such matters will be left to the states. They are talking about the actual consequences of an originalist (what Phocion is addressing) reading of the Constitution. At this point in history, such a shift would be a "novelty," albeit in the same way that flattening one's breasts to look like a young man would be a "novelty," i.e. actually a retro 1920s fashion.
Your post seemed to claim that there were no child labor relevant consequences to such a reading; that the states necessarily would march in lockstep with the federal standards here, if not necessarily with EPA and OSHA, and therefore no one concerned about child labor standards need have any hesitation whatsoever about removing the federal government from the decision making process. This distinction between how the states would behave regarding the environment and adult work conditions, and how they would deal with child labor, struck me as inaccurate, and hence my post in response.
The problem with claiming that the Times was somehow particularly fear-mongering (I was going to use quotation marks but restrained myself ;-) with regard to child labor is that the part you quote doesn't support that: "If extremists take control of the Supreme Court, we will end up with an America in which the federal government is powerless to protect against air pollution, unsafe working conditions and child labor." All three areas that currently have floor standards set by the federal government under its commerce clause powers, would be affected by a more limited view of what interstate permits, and I'm confused as to how you can say that the Times is fear-mongering to point this out, as fear-mongering usually is thought to be a practice in which one makes claims of questionable truthfulness or likelihood. If the Times had said, "In the absence of the federal government's intervention, no state will regulate these areas," that would be fear-mongering.
Certainly the general public's squeamishness with regard to uncontrolled pollution or employment practices would prevent a repeat of the kind of popular outcry that led to the federal legislation in the first place, as states would establish their own standards. But this doesn't rebut the Times's central assertion, which is that the federal government would lose control. If you think the federal government indeed should not be in control, you ought to defend that belief rather than claiming that the Times is saying something untrue.
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