by Roger Prather

In a recent post, the progressive website ThinkProgress attacked Utah Republican Mike Lee over comments he made regarding the constitutionality of federal child labor laws. In his remarks, Lee used federal child labor laws and the case against them in Hammer v. Dagenhart 247 U.S. 251 (1918) to illustrate the original meaning of our federal system and the distinct spheres of power occupied by federal and state governments under that system. In their attack, ThinkProgress, while accurately quoting the words of Sen. Lee, blatantly ignores history and turns to rhetoric in making a political argument.

The issues in the Hammer case revolved around a federal statute, passed by Congress, that prohibited goods from being shipped in interstate commerce if the business producing those goods had utilized child labor within the previous thirty days. Congress, by including the interstate commerce language, attempted to bring the statute within its constitutional grant of power. But the Supreme Court disagreed, holding that despite any “interstate” nature, the regulation of labor occurring entirely within a state was rightfully under state, and not federal, control.

When Hammer was argued and decided, the United States was emerging from the Gilded Age of the late 19th Century when the United States experienced the largest increase in economic and population growth in its history. The legal and political culture of the late 19th Century largely supported this growth admittedly by largely ignoring the well being and health of workers of all ages. As the 20th Century emerged and the United States became a more industrialized economy, the rights, needs, and concerns of middle and lower class workers garnered more attention from the legal and political establishments. One outgrowth of this increased attention was concern about the moral and social implications of child labor.

That child labor was increasingly being seen in a negative light is reflected in the dissent of Justice Oliver Wendell Holmes in the Hammer case, where he refers to “the evil of premature and excessive child labor.” In this case, Justice Holmes was willing to rule with reasoning that drew on popular sentiment. The majority of the court, however, chose to rule with reasoning that relied on the plain meaning of the commerce clause and the Tenth Amendment, which left the regulation of labor conditions to the states and their police powers.

Of course, it would be naïve to ignore the fact that Hammer, as well as other Supreme Court decisions during this era, were influenced in part by political pressures. The justices of the Supreme Court are nominated and confirmed by politicians, and many of the justices, especially during this period, were nominated for their political loyalties just as much as for their legal brilliance. But the final question that one must decide is “Did the Court decide correctly?” In Hammer the answer is unquestionably yes, not because child labor was good, but because the Constitution, if it and its language is to mean anything at all, must be taken at face value.

This is obviously the position taken by Senator Lee: That the language of the Constitution has a plain meaning and our decisions about the power of state and federal government must be controlled by the plain meaning of that language. The editorialists at ThinkProgress, however, disagree, instead focusing on the immediate results of judicial fiat by taking the traditional progressive position that ends justify means.

Even this position, though, is ostensible when they disagree with the ends. Like other progressive media, ThinkProgress is on record opposing the executive overreaches of President Bush and his ambitious domestic anti-terror policies. The ends of those policies were good, on their face – to protect Americans against the “evil” of murderous terrorists. Not that I agree with the means to those ends. I, too, am on record opposing the unconstitutional policies of President Bush. But like Senator Lee hopefully is, I am a “radical tenther” who supports Constitutional faithfulness, every issue, every time.

The “radical tenther” remark draws attention to the simply rhetorical attack that ThinkProgress launched in this article. Because Senator Lee drew attention to the Hammercase and constitutional issues about New Deal politics, ThinkProgress jumps to the conclusion that “in Mike Lee’s America” we’d still have segregated lunch counters, low wages, and no healthcare or retirement security, simply because the Constitution prohibits those powers to the United States government. This rhetorical argument links to another article attacking “conservative” views on the U.S. Constitution where tenthers, textualists, and strict constructionists are accused of implicitly supporting racial and gender discrimination, elimination of the U.S. Dollar, and child labor while implicitly opposing minimum wages, education, and popular election.

The linked article implores others to “tell the truth” about their views on the Constitution. Okay, I’ll bite.

Attacks on the Constitutional validity of minimum wage laws, judicial decisions about racial and gender discrimination, federal funding of education, and modern monetary policy are well-founded in the text of the Constitution. There is no constitutional authorization allowing Congress to set a minimum wage. Most of the judicial decisions regarding discrimination were based on stretched, unprecedented readings of the commerce clause that had no basis in history or common law. Education isn’t even mentioned in the Constitution because it was not considered a concern of the national government when the Constitution was written. And our current monetary system based on paper money with no backing is expressly prohibited in the Constitution.

That’s the truth.

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But it’s also the truth that recognizing a lack of Constitutional authorization for these acts is not the same as opposing the policies. Saying Congress has no authority to regulate wages is not the same as saying wages shouldn’t be regulated. Questioning the legal reasoning in discrimination cases is not the same as agreeing with racial or gender discrimination. Recognizing that there is no constitutional authorization for the Department of Education is not the same as saying education shouldn’t be publicly funded. And, questioning the constitutionality of our current fiat money system is certainly not the same as calling for the abolition of American currency.

There, I did it. But now it’s time for ThinkProgress and other like-minded groups to do the same … tell the truth. Admit that you attack principled views of Constitutional interpretation for strictly political reasons. Admit that you’re unwilling to have a debate on the merits of one style of Constitutional construction over another. And admit that you’re willing to abandon Constitutional language when it suits your political purposes and later strictly construe the same language if it so suits your political purposes.

I, and other “radical tenthers” take another, more principled, reasoned position: Constitutional loyalty. Every issue, every time without regard to political outcome.

Roger Prather [send him email] is the Communications Coordinator for the Massachusetts Tenth Amendment Center.

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