Speaking of constitutional history, Andrew Koppelman has an interesting piece today in the New Republic about a 1918 case that’s surprisingly apropos of today’s fight over Obamacare — and the conservative fear that upholding it would mean that Congress has been fully unleashed and can now do anything it damn well pleases. Back then, it was about a new federal law that banned the interstate shipment of the products of child labor:
The parallels between the child labor issue and the health care issue are remarkable. In both cases, the legislation in question was the product of a decades-long struggle….Only the federal government could address the issue, since no state would act on its own….Both then and now, challengers to the statutes had to propose that the Supreme Court invent new constitutional rules in order to strike them down. At the time it considered the issue in 1918, there was nothing in the Supreme Court’s case law that suggested any limit on Congress’s authority over what crossed state lines. On the contrary, the Court had upheld bans on interstate transportation of lottery tickets, contaminated food and drugs, prostitutes, and alcoholic beverages.
That’s why the Supreme Court’s invalidation of the law in 1918 astounded even those who had most strenuously opposed enactment. Hammer v. Dagenhart declared — in tones reminiscent of the Broccoli Objection to Obamacare — that if it upheld the law “all freedom of commerce will be at an end, and the power of the States over local matters may be eliminated, and, thus, our system of government be practically destroyed.” Justice Oliver Wendell Holmes, dissenting, wondered how it could make sense for congressional regulation to be “permissible as against strong drink but not as against the product of ruined lives.” The Court responded that unlike all the contraband that it had permitted Congress to block, the products of child labor “are of themselves harmless.” This meant a completely novel constitutional doctrine: The Court took unto itself the power to decide which harms Congress was permitted to consider when it regulated commerce.
If Obama is going to delve into Supreme Court history to defend healthcare reform, maybe he should skip Lochner and Schechter and instead talk about the Supreme Court’s overreach in Dagenhart. Reminding the country that a conservative court once overruled Congress and stood up for the right of 9-year-olds to operate power looms twelve hours a day might bring a little perspective to things.