Saturday, July 19, 2014

167.5 - Not Good News: Turning back the 20th century

Not Good News: Turning back the 20th century

This actually follows on from what I was just talking about. The connection may not be obvious at first, but it's there.

I mentioned a couple of weeks ago that just days after the city of Seattle enacted legislation to rise the city's minimum wage to $15/hour over the next several years, a group of corporations had filed suit to overturn the law.

As I said at the time, some of the suit's arguments are laughably frivolous, such as the claim that it violates the employers' First Amendment rights of free speech because higher wages could reduce the amount of money they have to advertise.

More importantly - and let me say that I am indebted to an article at Think Progress, linked just above, for much of what follows - the suit seeks to re-energize some long-rejected legal theories, including "liberty of contract" and a prohibition on "class legislation."

"Class legislation" was defined as "legislation that picks out a group of people for special benefits or special burdens without adequate public justification." Sounds like a reasonable idea, but the problem is that nearly any law can be characterized as discriminatory if a judge really wants it to be.

As an example, consider an infamous case from 1904, People v. Lochner. The state of New York had passed a law limiting the number of hours a bakery worker could be required to work to 10 per day and 60 per week. A bakery owner named Joseph Lochner was convicted of having one of his employees exceed the 60-hour limit. He appealed his conviction.

He lost in lower courts, but one dissenting judge claimed that a law prohibiting bakery owners from overworking their workers was unconstitutional class legislation because it only applied to the "small fraction of the community who happen to conduct bakeries or confectionery establishments." That is, a law regulating bakeries was unconstitutional because it only applied to bakeries.

The case then went to the Supreme Court, where it became known as Lochner v. State of New York. The Supreme Court struck down the New York law, but not on the basis of "class legislation." Rather, it threw the law out on the basis of "liberty of contract" - that is, by virtue of accepting the job, the workers had "agreed" to work those very long hours and the courts certainly should not interfere with that "freedom!"

Using that same argument, later Supreme Court decisions in what became known as "the Lochner era" struck down minimum wage laws (because that took away your "freedom" to "agree" to work for less) and laws protecting the rights of workers to form unions (because that took away your "freedom" to "agree" to deal with the bosses on your own).

The point here is that both these doctrines, "class legislation" and "liberty of contract," had over the course of the 20th century become regarded as invalid and improper. Lochner has been taught in law schools as an example of how courts should not act, alongside such abominations as Plessy v. Ferguson (which declared racial segregation under "separate but equal" was constitutional) and Dred Scott v. Sandford (which found that African-Americans could not be US citizens but were "beings of an inferior order ... so far inferior that they had no rights which the white man was bound to respect.")

But now, some high-powered legal talent - the lead litigator in the suit over the Seattle minimum wage law is Paul Clement, former US Solicitor General under George Bush and all-around right-wing go-to guy - some high-powered legal talent seems to think that with a Supreme Court apparently willing to go out of its way to say corporations are just like living beings, that this is the time to bring those legal notions back, to strike with arguments that, if adopted by the courts, would essentially invalidate the 20th century because any government regulation of or restriction on businesses would be subject to being found unconstitutional.

Every minimum wage law. Every law protecting the rights of workers to organize. Every environmental regulation. Every law about overtime. Every health and safety law. Every consumer protection law. Every law barring discrimination in hiring and promotions. Every law barring discrimination in public accommodations. All of them would be as risk. And more.

And don't think this is a one-off. George Will, the man all right-wingers turn to when they want to pretend they have any intellectual authority, and the man who once wrote that "'Back to 1900' is a serviceable summation of the conservatives' goal," said not long ago that Lochner was "correctly decided" based on our "individual possess[ion of] inalienable rights," including apparently, our "right" to "choose" to be desperate enough to submit to being overworked, underpaid, and exploited until we're no longer of use and can be dumped by the side of the road.

Meanwhile, right-wing legal theorist David Bernstein wrote a whole book devoted to, in the words of the title, Rehabilitating Lochner.

Bringing back the legal theories of "class legislation" and "liberty of contract," theories used in years past to strike down health and safety regulations and the rights of workers, these theories are continuing threads in right-wing legal circles and Paul Clement, who is no fool, has decided that now is the time to bring them into court, with his briefs for the Supreme Court doubtless already in preparation.

Make no mistake about it: George Will said it - "back to 1900." At the time he wrote it, he probably thought of it as a dream. Now there are those who can see it on the horizon. The right wing in this country is looking to undo the social progress of the entire 20th century. And if we don't pay attention and fight back, they just might do it.

Sources cited in links:

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