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Thursday, July 28, 2005

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,
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for child labor regulation than that promulgated by the feds, even the federal standards have been criticized for being out-of-date and failing to recognize differences between minors and adult males (for example, in permissible exposure to pesticides during agricultural labor).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?


Blogger T. More said...


I think any reading of that editorial that imagines it was making a serious point about potential tinkering at the edges of child labor law as a result of Judge Roberts' "philosophy" rather than trying to be alarmist and paint him as an "extremist" is not a serious reading.

Further evidence for this is the alarmism the editorial evinces about the dissent from the denial to rehear the case en banc, as I discussed.

So while you have interesting things to say about child labor here, I don't think it bears a very interesting relationship to the Times's editorial. On the other hand, Phocion has a nice comment going along with my post suggesting that the idea that states could have the responsibility for worker protection is perhaps something the framers had in mind in writing the Constitution. That of course is the question: what does the Constitution mean, not what is Judge Roberts's "philosophy". Too much judicial philosophizing produces novelties like Roe and Lawrence--"look what I can pull out of the 14th Amendment!"--and we've had enough novelties from the Court for a while.

8:22 PM  
Blogger PG said...

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.

10:06 PM  
Blogger T. More said...


Let's end the war of scare quotes. My post did not make a broad claim, nor would a fair reading of it infer such a claim, that there would be no possible child labor consequences (e.g., as you suggest, reasonable adjustments that might need to be made to federal policy in any event) to a change of judicial philosophy. It addressed the over-the-top fear mongering of the NY Times editorial, and I stand by that characterization and by the post.

I also stand by my quotation-mark-aided resistance to the approach of treating judicial philosophy debates as being essential to the confirmation of justices. Surely presidents and senators should do their best to guess what a potential nominee is like--that is envisioned by the Constitution and ratified by history. But it violates the notion of separation of powers to imagine that either the President or the Congress should be able to get answers clear enough about a philosophy to know how that philosophy would translate into votes. Almost any justice can claim to be originalist (according to Henry Monaghan, both Ginsberg and Scalia are originalists; let's make it easier, though--how would an originalist vote in Hamdi--like Scalia, or like Thomas?), as almost anyone can claim to be a natural law advocate (Dworkin claims he is, and so does Clarence Thomas--that aint natural!).

No nominee should answer the President with such specificity in interviews that he can put together a laundry list of votes, nor should any nominee so answer the Senate in hearings. If either event were to happen, then either or both the President and the Senate would be in a position to select judges on the basis of known (or promised) results, and the independence of the judiciary would be compromised.

The Times editorial is trading on a sophomoric version of this exercise, which is being consistently peddled by Jeffrey Rosen and Cass Sunstein, positing a "Lost Constitution" movement which brings with it the parade of horribles adduced in the editorial. Then Judge Roberts has the burden of proving his worthiness for the court by professing his distance from the "movement", or not. Yet there is no such movement, no philosophy that will yield the same results for everyone practicing it.

9:20 AM  
Blogger PG said...

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.

4:01 PM  
Blogger T. More said...


Technically, under originalism, one could fear that the Supreme Court would declare paper money to be unconsitutional as legal tender, since there is very little dispute since the 19th century that this was the original understanding. Nevertheless, it is a dead issue. To raise it now would not be serious, but misleading and frivolous, however much the Legal Tender cases stand as important in American Constitutional history.

So, for meaningful purposes, is child labor a dead issue. One could raise either issue as a matter of intellectual interest. Is this why the Times raised the issue? No.

It is all well and good if you took the Times editorial to be inviting a fine-grained analysis of child labor law, as your own posts have provided. For those who saw it otherwise, as I continue to see it, I offer my remarks. For those who think it was only raising the menacing specter of reasonable tinkering around the edges of child labor policy at a wonkish level of detail, they have your posts to enlighten them.

I have nothing further to add to what divides us in our hermeneutics of what the paper that has published articles about Judge Roberts's wife that Sen. Kennedy has called "out of bounds" (as reported by one such article) and has aggressively (despite its initial false denials) tried to investigate the nature of his family's sealed adoption records had in mind by raising child labor among its parade of horribles associated with his nomination.


12:33 AM  

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