The Volokh Conspiracy

Consider each of the following arguments in its historical context:

(1) It’s the 1930s. The Scottsboro Boys are represented by a known Communist Party front, beholden to the agenda Josef Stalin and his minions have dictated to the the C.P., including the creation of a separate country for American blacks in the “Black Belt.” The Supreme Court should rule against the Scottboro Boys because otherwise the Court will be well on its way to adopting the Communist agenda.

(2) It’s the 1980s. The EEOC is before the Supreme Court arguing that Title VII protects women from sexual harassment. The intellectual energy behind this claim comes from radical feminist Catherine MacKinnon, who also supports such things as “comparable worth” and a ban on indecent sexual speech. The Supreme Court should rule against the EEOC, lest it be well on its way to adopting the radical feminist aganda.

(3) It’s the 2000s. Various War on Terror detainees are challenging their detention. While the detainess have some mainstream support, much of the energy behind their challenges comes from elements of the radical left who, for example, want the U.S. Constitution to be subordinated to “international law” as elaborated by left-wing NGOs, and who in some cases adhered to an ideology most would describe as “anti-American.” The Supreme Court should rule against the detainees, lest it be well on its way to adopting the radical left’s aganeda.

Obviously, these arguments are all flawed; the strength and validity of legal arguments before the Court does not depend on who is representing the parties, nor on whether the relevant legal arguments were invented or influenced by “radicals” who have a political agenda that extends well beyond the precise issues before the Court. Nor does adopting one argument supported by “radicals” in any way obligate the Court to adopt the “radicals’” agenda in any future ligitation. Not surprisingly, the Court rejected arguments to the contrary in all of the examples above, which were made especially vociferously in examples 1 & 3.

This has not prevented a meme from developing, led by some prominent Supreme Court commentators who should know better, that if the USSC invalidates the ACA it will somehow be well on its way to adopting a broader libertarian agenda supported by some of those, including some of my co-bloggers, who helped craft the arguments against the ACA currently before the Court.

In fact, if the Court rules against the ACA, the other 90+% of the U.S. government loathed by libertarians will still be going strong.

Those Supreme Court watchers who are pushing the “liberarians are coming” meme are well aware that the Supreme Court has historically never strayed much from mainstream public and elite opinion, both of which remain decidely not libertarian. Nor is there any particular reason to believe that John Roberts, Samuel Alito, et al., are in thrall to libertarian ideology. So all we have left is the disreputable rhetorical technique of trying to asssociate in the public mind sound legal arguments with unpopular “radicals”, and to eke out a victory on the basis of the libertarian equivalent of red-baiting rather than on the merits. To say the least, such arguments do no credit to those advancing them.

Rehabilitating Lochner is now available for pre-order at Amazon for $15.30–quite a discount relative to the $37.00 the hardcover is going for (Cato sells it for $10 less). Amazon has meanwhile reduced the price of the Kindle edition to $15.07.

Interested readers can check out a recent LibertyLaw blog symposium on the book, with reviews by professors Keith Whittington, George Thomas, and Ted McAllister.

The Obama campaign is plugging “The Life of Julia,” designed to show how the government in general, and this administration’s policies in particular, help a hypothetical woman throughout her life.

The last entry, showing Julia at 67, really annoyed me:

Under President Obama: Julia retires. After years of contributing to Social Security, she receives monthly benefits that help her retire comfortably, without worrying that she’ll run out of savings. This allows her to volunteer at a community garden.

Really? We’re going to let Social Security remain unsound actuarially and allow it and other benefits for the elderly to bankrupt the country so “Julia” can volunteer in a community garden? I think that if “Julia” is healthy enough to be down on her hands and knees digging and weeding in the Summer sun, “Julia” can retire a couple of years later and help stave off national bankruptcy. [Note that the average sixty-seven year old woman has a life expectancy of eighteen years. "Julia" perhaps a bit longer, given her apparent health. Eighteen-plus years is an awfully long time to promise a healthy person he or she can retire on borrowed public money--which is probably why the president has said the age for social security should be on the table.]

In some previous posts, I’ve made two basic points about child labor and the Constitution in response to liberal commentators who can’t resist raising the issue of child labor any time anyone hints that there may be some constitutional limits to government regulatory authority. First, no one has ever seriously questioned the constitutionality of state child labor laws, and every state in the union passed such laws by the 1930s. Second, to the extent the pre-New Deal Supreme Court did question the constitutionality of federal child labor laws, that was both (a) a reasonable interpretation of the Commerce power and (b) arguably a good thing from a public policy perspective, because there’s no reason to believe that a one-size-fits-all policy with regard to specific child labor rules was appropriate in a country with vast regional differences in wealth.

It was the latter argument, in particular, that raised the hackles of some VC commenters. Only an evil Simon Legree, they suggested, would think that allowing kids under the age of 16 (the federal mandate invalidated by the Supreme Court early in the 20th century) to work in “adult” jobs is proper. Everyone knows that kids that age are too easily exploited by their parents for selfish gain, and allowing them to work would inevitably have deleterious effects on their health, well-being, and school performance and attendance.

I hope these commenters have saved some of their ire for the Obama Administration. I pointed out in one of the comment threads that child labor is, in fact, still permitted in the United States, so long as its agricultural work–and that agricultural work has some of the highest rates of worker injury. After considering a ban on much such work, the Obama Administration has backed down:

The Labor Department withdrew a proposed rule Thursday that would have limited the work that children can perform on farms…. The new regulations would have forbidden children younger than 16 years of age from completing “agricultural work with animals and in pesticide handling, timber operations, manure pits and storage bins.” It would also have barred farm workers under 16 from handling most “power-driven equipment” and from contributing to the “cultivation, harvesting and curing of tobacco.”

It seems to me quite overwrought for critics of the Old Court to denounce the Court for preventing the federal government from forbidding fifteen-year olds to work in factories when, almost one hundred years later, in a much wealthier United States, fifteen-year olds may still handle pesticides, work in timber operations and manure pits, harvest crops and tend livestock, and use power-driven equipment.

UPDATE: Partisan Obamaites are misconstruing this post in the comments as an attack on the Obama administration and/or its supporters. Rather, the point is that “progressive” legal commentators treat tolerance for child (really, young teenage) labor as a defining moral sin of the pre-New Deal Supreme Court. The Court’s decisions prohibiting federal regulation of child labor are deemed a sign of grave moral obtuseness, and any constitutional doctrine that might be deemed to lend support to such decisions is assumed to be obviously unacceptable in modern society, given our revulsion at child labor. But it’s quite difficult to square such outrage with the fact that some forms of child labor, including dangerous and difficult child labor, are still, almost 100 years later and in a much richer society, allowed under federal law, and are sufficiently entrenched in our society that the Obama Administration backed down from its attempt to ban them.

Imagine, for example, if the ghost of Justice William Day, author of Hammer v. Dagenhart, rose from the grave and showed up at Dahlia Lithwick’s door, ready for an interview. Lithwick, in her most outraged tone of voice, asks, “How could you and your colleagues invalidate laws aimed at the odious practice of child labor?” Would Day be out of line in responding, “We were following our best understanding of the Constitution’s limits on federal power, and anyway it didn’t seem to us that impoverished Mississippi needed the same rules as New York with three times the per capita income. But let me ask you something: is it true that even though there are no longer any constitutional restrictions on federal power to regulate labor, and that the U.S. is now wealthy beyond anything we could have dreamed of in the 1910s, that you still allow kids under sixteen year olds to engage in dangerous farm work?”

Orin quotes Leiter as follows, in suggesting that Elizabeth Warren would not have listed herself as a Native American to benefit from affirmative action: “For affirmative action purposes, all law schools care about are African-Americans and Latinos.” But he also quotes Leiter as follows: “[B]ecause the AALS aggressively polices the racial and ethnic diversity of law faculties [editor's note: as does the ABA, which is of course in charge of accreditation], law schools are careful to make sure anyone who could count as an under-represented minority is so-listed.”

So if law schools are worried about not having “enough” underrepresented minority faculty to satisfy the AALS (and the ABA), and if Native Americans count as underrepresented minority faculty (they do), surely it gives a law professor a potential advantage to promote oneself as a Native American.

This is not to say that Warren’s hiring at Harvard had anything to do with her dubious claim of minority status. But that’s a red herring. The issue isn’t whether Harvard or anyone else would or would not have hired Warren otherwise. The issue is whether Warren claimed dubious minority status because she thought that on the margins it might benefit her. [The issue, in short, is Warren's integrity, not whether she "deserves" to be at Harvard based on her academic achievements. In fact, Warren has had an extremely impressive academic career, especially given that she started with the serious disadvantage of not in any way taking the traditional 'elite law school to elite clerkship to elite law firm' route that almost every professor at an elite law school has taken.]

Perhaps not. But all she has to do to clear things up is to answer the following question: “why did you list yourself as a minority professor when you were a professor at Texas and Penn, but then didn’t do so once you arrived at Harvard.” I can think of plausible explanations that would not reflect poorly on Warren, but she hasn’t as yet provided such an explanation. All she’s said is that she’s proud of her Native American heritage, which hardly explains why she listed herself at Penn and Texas and not at Harvard.

Note to Warren’s campaign: If you want to provide a written response to the query above, I’d be happy to post it on this blog.

UPDATE: Warren now claims that the answer the query raised above is that she hoped to meet and interact with other lawprofs who similarly had Native American ancestry. Professor Jacobson responds that this doesn’t make sense, because the AALS guide doesn’t tell one’s colleague which minority group one is claiming membership in. Read his post and decide for yourself.

Plenty of other bloggers are following the story of Warren’s claim of minority status, and I’ll leave it to them. But I did want to reprint the reporting below by Professor Jacobson, because it’s salient to many of the comments to my original post (and kudos to Jacobson for gathering more information than reporters from major newspapers have managed). In particular, Jacobson confirmed that Warren self-identified in the AALS faculty guide as a “minority” based on Native American status.

I spoke this afternoon with Alethea Harney, Warren’s campaign press secretary, and confirmed several key details.

Harney acknowledged that the minority status reported by Warren to AALS was Native American, and that while Warren does not remember the precise forms, she believes there was a box or other designation to be selected for Native American.

The AALS reporting was the only time Warren self-identified as Native American as far as Warren currently is aware, according to Harney, and Warren never has joined any Native American groups, or asserted any tribal memberships.

According to Harney, Warren’s Native American status did not come up in connection with her hiring by HLS, and in fact she was recruited and did not apply.

Harney said that Warren does not have any records documenting her Native American heritage, but that is being researched. Harney said that the campaign has been told that there is no good genealogical documentation with regard to tribes from Oklahoma, unlike tribes from some other areas. Harney did indicate that the tribal connection is believed to be on Warren’s grandmother’s side of the family.

Harney was unaware of whether Warren ever claimed Native American status on any college or law school applications, and would not comment on how HLS ended up listing Warren as Native American.

UPDATE: Oh, and this made me laugh out loud, for reasons having nothing to do with the “diversity” issue: “On Monday night, officials involved in her hiring at Harvard, the University of Pennsylvania, the University of Texas and the University of Houston Law Center all said [in statements released by the Warren campaign] that she was hired because she was an outstanding teacher, and that her lineage was either not discussed or not a factor.”

Harvard and other elite law schools are now hiring tenured faculty primarily based on teaching prowess, rather than scholarship? Expect the relevant lateral appointments committees to be inundated with c.v.s from student-selected “professors of the year” who have until now somehow escaped the top law schools’ notice.

[As Orin writes in the comments, "to a law professor familiar with academic hiring, this [being hired by an elite school based on teaching rather than scholarship] is akin to proposing that a 19-year old guy was attracted to a Victoria’s Secret model primarily because of her personality. It’s possible in theory, but not likely in reality.”]

FURTHER UPDATE: Just to be clear, the “hired for being an outstanding teacher” line is the Times’s reporter’s interpretation of what the law school officials said. Politico reprints the letters in full, and they all at least mention Warren’s scholarly ability.

And there’s an additional amusing aspect to this whole kerfuffle, which is individuals who would normally trumpet law school diversity efforts that consider “minority” status a plus for faculty hiring expressing dismay that anyone would wonder whether dubious minority status was claimed because it might be be a plus for hiring. Professor Althouse and John Rosenberg elaborate.

I’m pleased to announced that Michael Greve, currently the John G. Searle Scholar at the American Enterprise Institute, has accepted an offer to join the George Mason law faculty starting this Fall. His interests include federalism (on which he has written a brilliant new book), business regulation, environmental law, and more. I’ve known Mike and admired his work for years, and am excited that he will soon be my GMUSL colleague.

UPDATE: And while we’re on the subject of Greve, here’s his recent blog post about being the metaphorical “shabbos goy” at a Yale Law School conference on Jack Balkin’s new book. And since bloggers too often spend all their time complaining and criticizing, let me second Mike’s comment that Jack is “the most spirited, generous, smartest, funnest guy you can hope to meet in a habitually dorky profession” [with no offense intended to any actual law professor dorks.]

A controversy has broken out in Massachusetts over the fact that Harvard Law School has claimed professor and current senatorial candidate Elizabeth as a minority member of the faculty based on apparent (but as yet unconfirmed) Native American ancestry. The Brown camp seems to think this is big news [update: the campaign has called on her to apologize for allowing Harvard to claim her as a "minority"; this, as we'll see, doesn't make any sense, because at the time Warren was claiming herself as a minority, and Harvard was only following her lead], Warren responds that she’s unaware that Harvard claimed her as a minority professor, but that she’s proud of her Indian ancestry. Her colleague Charles Fried, who was chair of the appointments committee when she was hired, claims that Warren’s Native American ancestry never came up in the hiring process, and that he only became aware of it later.

My contribution to this controversy is that there seems to be some disingenuousness going on. Warren says that she could not “recall” ever listing her Native American background when applying for college or a job.

The old AALS Directory of Faculty guides are online (through academic libraries) at Hein Online. The directories starting listing minority faculty in an appendix in 1986. There’s Elizabeth Warren, listed as a professor at Texas. I spot-checked three additional directories from when she was a professor at the University of Pennsylvania, including 1995-96, the year Harvard offered her a position. Elizabeth Warren, Elizabeth Warren, Elizabeth Warren.

So, we know one thing with almost 100% certainty: Elizabeth Warren identified herself as a minority law professor. We know something else with 90%+ certainty: (at least some) folks at Harvard were almost certainly aware that she identified as a minority law professor, though they may not have known which ethnic group she claimed to be belong to, and it may not have played any role in her hiring.

But it gets even more interesting: once Warren joined the Harvard faculty, she dropped off the list of minority law faculty. Now that’s passing strange. When the AALS directory form came around before Warren arrived at Harvard, she was proud enough of her Native American ancestry to ask that she be listed among the minority law professors. (Or, in the unlikely even that she just allowed law school administrators to fill out the forms for her without reviewing them, they were aware that she claimed such ancestry, and she didn’t object when she was listed.) Once she arrived at Harvard, however, she no longer chose to be listed as a minority law professor.

Hmmm.

UPDATE: This story reminded me of the 1980s case of the twin red-haired Boston firefighters who claimed to be black, based on a photo of a great-grandmother and alleged oral history. While I remembered that they had gotten fired for their alleged fraud, I didn’t remember this detail:

Under current rules, said [general counsel to the state personnel office] Ms. Dale, candidates who say they are members of minority groups are judged by appearance, documented personal history and identification with a minority community. Disputes over claims of minority status are resolved by the Department of Personnel Administration.

And indeed, there eventually was a two-day administrative hearing, in which the hearing officer determined that the twins failed all three criteria, and thus were not black. A judge upheld the ruling, finding that the twins had claimed minority status in bad faith.I have to admit being under the impression until now that as a legal matter, minority status was an in issue of self-reporting. But at least in the Massachusetts Civil Service system, one can get fired for “racial fraud.”

Some of our readers may be interested in this conference, to be held in Jerusalem May 20-24, sponsored by the free market-oriented Jerusalem Institute for Market Studies. Among the distinguished group of speakers is the VC’s own Randy Barnett, Cato’s Tom Palmer, and University of Chicago economist Sam Peltzman. I’m planning to attend at least part of the conference, as I’ll be in Israel on other business.

It seems that liberal commenters on constitutional law just can’t resist bringing of the issue of child labor, regardless of whether what they’re saying is historically accurate. The latest offender is Dahlia Lithwick. In criticizing Judge Janice Brown’s call for a return to pre-New Deal, Lochnerish concern for economic rights Lithwick writes, “Let’s put aside the extraordinary nature of Brown’s substantive argument, which holds so little regard for ‘democratic processes’ and would gladly upend such odious regulatory regimes like child labor laws.”

So let me repeat it one more time. In the middle of the so-called Lochner era, the Supreme Court upheld state regulation of child labor by a 9-0 vote (Sturges & Burn Mfg. Co. v. Beauchamp, 231 U.S. 320 (1913)). I’ve blogged before that I’m not aware of ANY court in any American jurisdiction ever holding that child labor laws violate a constitutional right to economic freedom or “liberty of contract”, and no one has written in to correct me (for examples of state courts upholding child labor laws within a few years of the Lochner decision, see Ex Parte Weber, 149 Cal. 392 (1906); United Steel Co. v. Yedinak, 87 N.E. 229 (Ind. 1909); Bryan v. Skillman Hardware Co., 76 N.J. 45 (1908); People v. Taylor, 192 N.Y. 398 (1908); State v. Shorey, 86 P. 881 (Ore. 1906)). All fifty (oops, 48) states passed child labor laws before 1937, when Lochner was overruled. Economic liberty concerns were not a barrier to the spread of such legislation.

For the last seventy-plus years most liberal scholars and commentators (and almost all until recently) have refused to take the pre-New Deal Supreme Court constitutional jurisprudence seriously as anything beyond an expression of “reactionary” economic ideology or class warfare. They have therefore have assumed that since the Supreme Court invalidatedfederal child labor laws 5-4 as beyond the scope of the commerce clause, this must have reflected a general “conservative” hostility to such laws, as opposed to a sincere (albeit controversial) interpretation of the Constitution. They therefore further assume, falsely, that the courts must have been hostile to state and local child labor laws, and used “economic freedom” arguments to invalidate such laws.

So let’s repeat. Federal child labor laws before FDR’s appointees took over the Supreme Court: constitutionally questionable as an exercise of the power to regulate interstate commerce. State and local child labor laws: clearly constitutional as within the police power. Doctrine did make a difference, and it’s high time that Lithwick and others stop relying on myths that could be quickly rebutted with a modicum of research.

Meanwhile, I’ve never seen ANY modern conservative or libertarian constitutional scholar argue, as Lithwick implies, that state and local child labor laws would be unconstitutional as violations of economic freedom. So if the historical “Lochner era” courts okayed child labor laws, and there’s no prospect of future Lochnerish holding that such laws violate liberty of contract, raising this particular canard doesn’t exactly inspire confidence.

UPDATE: Even Christopher Tiedeman, who took many radically libertarian positions (for his day) in his late-nineteenth century works on constitutional law–he argued, for example that drug laws and laws banning interracial marriage, upheld 9-0 by the Supreme Court, were unconstitutional–acknowledged that child labor laws were constitutionally valid.

David Schraub:

Professor Kerr also expresses his discomfort with “the propriety of placing such views [after upholding a law, nothing that the law in question is a bad law and should, in a world of better constitutional law, be held unconstitutional] in the Federal Reporter instead of a law review or published speech.” I strongly disagree….

Opinions of the form “the law is constitutional, but moronic” (or vice versa, for that matter) serve at least two important functions. First, they serve a dialogic function that can help make better law. Courts see how laws play out on the ground, this experience gives them insight on how (and whether) the law works and whether it is worth preserving. Why should the judiciary not provide the public with this perspective, parallel to (not replacing) their primary obligation to interpret the law in front of them?

But more importantly, these opinions help sap judicial decisions of unwarranted and unintended “moral endorsements” by the judiciary.

Read the whole thing. Orin’s position is certainly not unreasonable, but I think I’m with Schraub on this one. And I’d add a third reason: if judges’ can freely express their discomfort with the law they’re upholding and the rules they’re upholding it under, it reduces the temptation they might have to distort the law so as to not be seen as endorsing the law and the underlying doctrine.

In honor of Holocaust Remembrance Day, I’m posting for the first time in a while a link to my grandmother’s memoir of youth in Poland from 1905-1921, giving the relatively rare perspective of a poor Jewish girl from a religious but relatively worldly family (e.g., contrary to stereotype, my great-grandmother was educated, and my grandmother went to Polish public school as well as religious school).

And while we’re on the subject of my ancestry, in building a family tree I’ve been frustrated by my inability to find any record of my great-grandfather’s family from Kėdainiai [Keidan] Lithuania. Their name back in Lithuania was the very unusual (for Jews at least) Stravinsky or Strawinsky, but in the U.S. this became “Stein.” He apparently had eight siblings, all or most of whom also came to the U.S. I don’t know whether they all also became “Steins”. But given the rarity of the surname, perhaps by posting this some distant cousin will get in touch.

If any of our readers can recommend a good buyer’s real estate agent in the Rockville area, please leave a comment below (might as well make the recs public for the benefit of others). I’m less in need of a recommendation of someone “nice”, and more interested in a savvy shark type. Thanks.

Over at Balkinization, University of Texas law professor Mitch Berman has an elegant post explaining why he thinks the Medicaid provisions of the Affordable Care Act are unconstitutional. Put as briefly as possible, he argues that the states are not being compelled to accept and spend the money, but they are being coerced, and this coercion is unconstitutional because the states otherwise have a right not to be commandeered by the federal government. But a one-sentence summation doesn’t do justice to the argument so if you are interested you should read the whole thing. You can find responses to, and a followup by, Berman at Balkinization’s main page.

Despite my pre-oral argument warning that Lochner v. New York really has nothing to do with the constitutionality of the individual mandate, Lochner has consistently arisen. Most prominently, of course, the President mentioned Lochner (and in a dubious context), but only after the Solicitor General raised it at oral argument, CJ Roberts parried, and Justice Sotomayer raised it again, not especially coherently.

Surveying some of the post-oral argument Lochner-related commentary, I hereby present The Lochner Awards in various categories noted below:

Weirdest and most conspiratorial use of Lochner
Breitbart.com “In continuing his attack on the Supreme Court on Tuesday, President Barack Obama made a mistaken reference to the Lochner decision–an error that suggests just how deeply Derrick Bell affected his thinking about the Court and the Constitution.”

Spookiest Lochner reference
Jamin Raskin, Huffington Post “The ghost of Lochner is alive and well on the Roberts Court” (someone call Bill Murray!)

Smelliest use of Lochner
Daily Kos: “the stench of Lochner and Dagenhart will cause SCOTUS to uphold the law”

Most “challenging” reference to Lochner
Attorney Bryan Caskey: “So if you come across anyone who tries to tell you that holding the ACA to be unconstitutional will be a revival of Lochner, ask them if they can explain the holding.”

Most Honest use of Lochner
Jonathan Cohn, New Republic: “But I’m pretty sure both Obama and his administration’s lawyer were saying something different, and broader, when they invoked Lochner: By invalidating the Affordable Care Act, the Supreme Court would be resurrecting a vision of constitutionally limited government that, quite rightly, went out of fashion a long time ago.” (Constitutionally limited government! The very idea is preposterous!)

Most Puzzled reference to Lochner
DailyGreg blog: “Lochner? Who the hell is Lochner?”

Disco Lochner
Allergictobull.com: “Now one thing that comes up several times is what I refer to as the Lochner ‘boogie man.’”

Most judicious comment about Lochner
Damon Root, Reason: “the legal challenge to the individual mandate has nothing whatsoever to do with overturning any New Deal era precedents”

Cohn in TNR:

I’ve tried to make the case previously for why a decision striking down even part of the Affordable Care Act would be so brazen and unjustified… It’d be a five-to-four vote, along party lines, overturning a sweeping legislative initiative on what would be, at best, shaky constitutional arguments. That hasn’t happened since those early New Deal cases, just as Obama suggested.

Actually, the most important of the New Deal laws invalidated by the Court, the National Industrial Recovery Act, a law far broader than the ACA, went down 9-0. The other two New Deal decisions on “Black Monday” in 1935 were also 9-0. The second most important piece of New Deal Legislation to be invalidated by the Court, the Agricultural Adjustment Act, went down 7-2. The Guffey Coal Act went down 6-3. Offhand, I can think of several major pieces of New Deal legislation that were upheld 5-4, but I’m drawing a blank on ones invalidated by that vote.

And the Court was NOT split along party lines. Justice James McReynolds, who typically voted with the conservatives, was a Democrat, as was Justice Brandeis, who led the Progressive wing of the Court. All of the other seven Justices were Republican appointees, and most of them were loyal Republicans (as opposed to, e.g., Justice Cardozo, who Hoover appointed because he was the most prominent judge of his era, and not for standard “political” reasons).

So in a sense, from Cohn’s perspective, this would make a decision invalidating the ACA even worse. But one can rejoin that never has such an important piece of federal legislation been rammed through on a narrow, partisan vote. And given the Schechter case invalidating the NIRA, it’s also true that the Court has even in times of great economic crisis saw fit to unanimously invalidate the signature piece of legislation of an overreaching president. One difference, today, of course, is that the liberal wing of the Court, led by Justice Breyer, sees NO justiciable limits on the scope of federal power, so there’s no hope of a unanimous, or even bipartisan, vote today.

Finally, as Barry Cushman points out, the biggest reason early New Deal legislation had trouble getting past the Supreme Court is that the Roosevelt Administration didn’t take care to draft the legislation to avoid constitutional objections. Sound familiar?
[post expanded a bit from the original]

UPDATE: Getting the history correct is important not because it necessarily points one way or the other on the ACA challenge. Rather, a mythology has grown up around the New Deal cases suggesting that the constitutional barriers FDR’s legislation faced were due to the efforts of five reactionary, partisan, recalcitrant justices who manipulated doctrine in an effort to defeat the New Deal. FDR, through his appointments, restored the broad interpretation of federal power that had prevailed throughout the nation’s history before the New Deal. When it turns out that major pieces of New Deal legislation were invalidated 9-0, 7-2, etc., it undermines this mythology, and means that the major changes to constitutional doctrine that the Court undertook starting in the late 1930s must be justified on their own terms, not as a restoration of previous doctrine.

Supreme Court reporter Robert Barnes has a piece today about the role of Lochner v. New York in the ACA litigation. The Solicitor General told the Court at oral argument that invalidating the ACA would bring back Lochner, and last week President Obama said, “A law that was passed by Congress on an economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner.”

Of course, this is lots of fun for me, as my formerly obscure (to my relatives and friends) interest in Lochner now has some popular currency. (It shouldn’t hurt book sales, either).

But I wonder if raising Lochner is really helpful to the ACA’s proponents. First, liberals and conservatives mean two different things when they criticize “Lochner“. Barnes quotes me as follows:

“Liberals see the court as unduly interfering with progressive legislation meant to help people who needed it,” Bernstein said. “Conservatives draw a different lesson: They see it as a symbol of judicial activism,” creating a right beyond those enumerated in the Constitution.

The SG and president used Lochner in the former sense, but that doesn’t seem likely to sway the Court’s conservatives. Indeed, CJ Roberts jumped all over the SG when he suggested that the ACA challenge resembled Lochner: “It seems to me it’s an entirely different question when you ask yourself whether or not there are going to be limits on the federal power, as opposed to limits on the states, which was the issue in Lochner.” In other words, this is an enumerated powers case, not an unenumerated rights case, and therefore Lochner is irrelevant.

Moreover, to the extent that Justice Kennedy is likely to be the swing vote, he seems perhaps the least likely Justice to be swayed by accusations of “Lochnering.” Kennedy is, I think, the only Justice who has had dissenters from both left and right accuse him of repeating Lochner’s mistakes. Just last term, in Sorrell v. Vermont, Justice Breyer twice raised Lochner in his dissent to Justice Kennedy’s majority opinion. Back in 2003, Justice Scalia, dissenting from Kennedy’s opinion in Lawrence v. Texas, suggested that the Fourteenth Amendment no more protects the right to engage in homosexual sodomy than it does the right to “work[] more than 60 hours per week in a bakery” (alluding to the facts of Lochner).

Kennedy is also the least shy “conservative” Justice about relying on the Fourteenth Amendment to protect economic rights, the underlying “sin” of Lochner for both left and right. Unlike Thomas and Scalia, he happily joins opinions invalidating state punitive awards as violating the due process clause. And then there’s his lone opinion in Eastern Enterprises v. Apfel, in which he wrote, “Although we have been hesitant to subject economic legislation to due process scrutiny as a general matter, the Court has given careful consideration to due process challenges to legislation with retroactive effects.” He then proceeded to argue that the legislation in question fails a due process analysis.

So I’m not sure what the strategy of raising Lochner is supposed to accomplish, but it doesn’t seem well designed to get the government five votes in the ACA litigation.

The New York Times has up a post by Philip Kitcher, John Dewey Professor of Philosophy at Columbia University, on Social Darwinism. Kitcher is eager to reach the conclusion that the GOP’s budgetary policies are “Social Darwinist”, and in service to that agenda, or perhaps because his research on the matter isn’t up-to-date, her presents an extremely simplistic version of the history of Social Darwinism that’s right out of Richard Hofstadter’s influential but dubious 1944 work Social Darwinism in American Thought. As an antidote, I recommend reading Thomas C. Leonard’s excellent essay, Origins of the Myth of Social Darwinism: The Ambiguous Legacy of Richard Hofstadter’s Social Darwinism in American Thought. The short version: our current concept of “Social Darwinism” has a lot less to do with what intellectuals of the late 19th and early 20th century actually believed–Progressives often broadly fit the category of “Social Darwinist”, libertarian types less so than is commonly believed–and more to do with the Hofstadter’s ideological agenda of supporting Progressive economic reform (Wikipedia quotes him as saying, “I hate capitalism”) while undermining the case for using biology in the social sciences.

UPDATE: So, Hofstader deemed “Social Darwinists” not people who called themselves Social Darwiwinists, nor always those who used scientific or biological concepts to inform social policy. Rather, he largely defined Social Darwinists as those whose views were diametrically opposite to his own, in that they believed in the relevance of science to social policy and were individualists in their social policy outlook. Thus, the many Progressives who believed that the “survival of the fittest” meant that an active government was necessary to ensure that American society was able to compete with other societies did not generally get labeled as Social Darwinists. (Indeed, Darwinian ideas in social policy long outlasted the virtual last gasps of laissez-faire ideology in the late 19th century.) And to make it worse, Hofstader frequently exaggerated or misstated the views of those he did deem Social Darwinists (see this book for a debunking). Kitcher’s post continues in the long tradition of left-wing academics defining Social Darwinism as “that to which I am ideologically opposed.”

FURTHER UPDATE: Some comments have led me to think I should actually have been even more critical of Kitcher. He defines Social Darwinism as the ideology of those who (a) believe that people have natural talents and abilities and that (b) competition is a good thing and creates societal benefits. He then explicitly excludes versions of Social Darwinism that were popular among Progressives in the early 20th century, supportive of imperialism (the most infamous purported American libertarian Social Darwinist, William Graham Sumner, was a vigorous opponent of imperialism) and eugenics. Even Hofstadter wasn’t as crude about defining Social Darwinism so overtly to describe his contemporary ideological adversaries, such that the concept of evolution is basically absent, and to exclude those that would ruin his “story.”

From the Attorney General’s letter to the Fifth Circuit:

Where a plaintiff properly invokes the jurisdiction of a court and presents a justiciable challenge, there is no dispute that courts properly review the constitutionality of Acts of Congress.

2. In considering such challenges, Acts of Congress are “presumptively constitutional,” Turner Broadcasting System, Inc. v. FCC, 507 U.S. 1301, 1301 (1993), and the Supreme Court stressed that the presumption of constitutionality accorded to Acts of Congress is “strong.” United States v. Five Gambling Devices Labeled in Part .. Mills,” and Bearing Serial Nos. 593-221,346 U.S. 441 , 449 (1953); see, e.g., Gonzales v. Raich, 545 U.S. 1, 28 (2005) (noting that the “congressional judgment” at issue was “entitled to a strong presumption of validity”). The Supreme Court has explained: “This is not a mere polite gesture. It is a deference due to deliberate judgment by constitutional majorities of the two Houses of Congress that an Act is within their delegated power or is necessary and proper to execution of that power.” Five Gambling Devices Labeled in Part .. Mills,” and Bearing Serial Nos. 593-221, 346 U.S. at 449.

I’m pretty surprised that Holder would quote language suggesting that a strong presumption of constitutionality obtain to acts of Congress because of the “deliberate” constitutional “judgment” of Congress when at issue is a law for which there is substantial evidence that there was no such deliberate judgment (and that’s besides the fact that virtually no one knew everything that was in the bill before they voted on it). When I recently recounted various on-point quotes, I concluded, “something to keep in mind when someone argues that the Supreme Court should defer to the constitutional wisdom of its coequal branches.” Indeed.

Putting aside what one thinks of the ACA, why exactly should the courts strongly defer to implicit constitutional conclusions by Congress when, in fact, there was not only no deliberation on the issues, but when leading supporters of the legislation explicitly denied they thought the Constitution mattered? (A law, I should not, could of course still be upheld even if the courts don’t give a strong presumption of constitutionality to it).

UPDATE: To be clear, while some of the remarks by legislators dismissing constitutional concerns about the ACA were particularly egregious, my point is not limited to the ACA. Congress, whether controlled by Democrats or Republicans, in fact almost never gives serious constitutional consideration to what it does. When the Supremes largely got out of the business of reviewing Congress’s economic regulations, they justified their action on the grounds that Congress is more competent to make the relevant constitutional determinations (e.g., what is “necessary” for the regulation of interstate commerce) than they are. Even if that’s true, Congress’s competence only matters if Congress in fact tries to make such determinations in a serious way. It doesn’t. So I don’t see the justification for a policy of “strong deference” to Congress on constitutional matters that is not, for example, given to state legislatures.

The real reason may be that “we’ve been afraid since 1937 that Congress will retaliate against us, while the state legislatures can’t.” If that’s the gist of it, though, there’s no reason to pretend that there’s some “principle” behind the Congress’s special presumption.

Further Update: I’m rushing off to prepare for the holiday, but it’s worth noting that the Supreme Court’s strong deference to Congress as a “coequal branch” is very selective, occurring in the context of challenges to the scope of Congress’s enumerated powers–ironically, arguably the last place you’d want to defer–and not, say, in First Amendment, criminal procedure, and other contexts. And the leading USSC advocate of absolute deference to Congress’s understanding of the scope of its Commerce power, Justice Breyer, has exhibited no such deference to the other “coequal” branch, the executive, when it comes to the scope of its national security powers (or to Congress, either, for that matter).

I agree with Kevin Drum that criticism of the imprecision of Obama’s rhetoric regarding the Supreme Court on Monday and Tuesday is something of a tempest in a teapot. But I also agree with Drum when he writes:

Generally speaking, I’ve been a little surprised at how careless Obama has been on all this. His original statement that overturning ACA would be “unprecedented” was pretty sloppy…. And the Lochner stuff was sloppy too. I’m not sure why he hasn’t been a little more careful in his choice of words.

Maybe because he still has the self-image as a Con Law professor, and doesn’t realize that he’s grown rusty and should vet his Con Law related comments with staff?

UPDATE: For what it’s worth, to the extent I’ve heard Obama speak on constitutional law (via an old interview that cropped up before the 2008 election), looked at his syllabi and exams, and spoken to some of his former students, he seems to have been quite a successful teacher of constitutional law in his pre-Senate career, and also quite thoughtful about constitutional law, albeit from a very different perspective than I’d approach it. But (a) many good con law professors don’t teach from a “historical” perspective (especially when, like Obama, they only teach the 14th Amendment part of the curriculum), and deep knowledge of modern caselaw combined with a more general knowledge of historical trends doesn’t make you an expert on constitutional history; (b) even experts can grow rusty if they haven’t had occasion to engage with their field for a decade or more (it would be nice if Senators and Presidents of both parties occasionally spent their time thinking deeply about the Constitution, but who are we kidding?); (c) politicians grow used to talking in soundbites, but it’s not that easy to summarize complex constitutional history like the historical role of the Supreme Court in invalidating legislation into an accurate soundbite.

All the talk from the left about how absurd it would be for the Supreme Court to invalidate the ACA on commerce clause grounds has made me think about ridiculous Supreme Court reasoning. And when I say ridiculous reasoning, I mean just that; not that I necessarily even object to the outcome of the case, just that I have a hard time keeping a straight face if I have to explain the reasoning to my students.

The penumbras and emanations line from Justice Willioam O. Douglas in Griswold is a perennial favorite, but I think Douglas outdid himself two years earlier in Gray v. Sanders. This was an extremely important case, because it announced the “one person one vote” rule, which soon led the Court to order virtually every state in the union to redistrict its legislature. Moreover, this was hardly an “apolitical” decision, because it forced states to reduce representation for (conservative) rural areas in favor of (liberal) urban areas, consistent with the political interests of the Court’s majority.

So how did Douglas justify the one-person, one-vote principle, even though no (or maybe almost no) states complied with it previously, and even though the U.S. Senate is obviously not apportioned on that basis? “The conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing – one person, one vote.” I kid you not.

Readers favorite examples of similar addled reasoning are welcome in the comments.

UPDATE: I can’t pick out one or two lines, but I have to admit not being able to follow the “reasoning” of Justice Holmes in Federal Baseball Club v. National League, 259 U.S. 200 (1922), in which he acknowledges that baseball teams cross state lines to play exhibitions for the purposes of making money, but that this nevertheless does not constitute “interstate commerce” for the purposes of federal antitrust law.

Further UPDATE: Judging from the comments, quite a few VC readers don’t understand the distinction between criticizing a ruling’s reasoning, and criticizing a ruling’s outcome. For example, I think Douglas’s Griswold opinion was quite poorly reasoned, but I don’t have any problem with Goldberg or Harlan’s concurrences, which reached the same result.

Guess who wrote the book described in this advertising blurb:

America’s Prophets: How Judicial Activism Makes America Great fills a major void in the popular literature by providing a thorough definition and historical account of judicial activism and by arguing that it is a method of prophetic adjudication which is essential to preserving American values. ___ confounds the allegation of the Christian right that judicial activism is legally and morally unsound by tracing the roots of American judicial activism to the methods of legal and moral interpretation developed by the prophets of the Hebrew Bible. He claims that Isaiah, Amos, and Jesus are archetypal activist judges and, conversely, that modern activist judges are America’s prophets. ___ argues that judicial restraint is a priestly method of adjudication and that it, not judicial activism, is the legally and morally unsound method.

Race and gender discrimination, separation of church and state, privacy rights, and same-sex marriage are all issues that have divided our nation and required judicial intervention. Every time the courts address a hot-button issue and strike down entrenched bias or bigotry, critics accuse the justices of being judicial activists, whose decisions promote their personal biases and flout constitutional principles. This term, despite its widespread currency as a pejorative, has never been rigorously defined. Critics of judicial activism properly point out that when judges overturn laws that enforce popular norms they thwart the will of the majority. But ___ argues that so-called activist judges uphold two other American legal values that are as deeply embedded in American legal culture as majoritarianism: liberty and equality. He challenges the notion that judicial activism is unprincipled, and he provides a vocabulary and historical context for defending progressive decisions.

Answer: University of Houston law professor David Dow, who wants to impeach the Justices if they invalidate the ACA because that would prove them to be judicial activists, whose decisions promote their personal biases and flout constitutional principles.

H/T Instapundit

Andy Koppelman has another essay, this time in the New Republic, analogizing the litigation over the ACA to the Child Labor Cases. Of course, this is a tried and true rhetorical technique: find a case that is widely despised (Dred Scott, Lochner, Plessy), and analogize current litigation to that despised case.

Just a few points:

(1) Koppelman writes, with regard to child labor, “only the federal government could address the issue, since no state would act on its own.” But I pointed out in response to his last article that every single state did in fact pass laws restricting child labor. Koppelman acknowledges the point, but responds, “This, however, ignores the enormous variation in child labor policy: Some laws were weak; others were ineffectively enforced.” But saying that states chose not to have as strict laws as the federal government, or enforce them as vigorously as the federal government might, is quite different from saying that they couldn’t act; rather, they chose not to act as vigorously as the federal government. That’s what happens when you live in a federal system–sometimes you will think that states are being derelict in their legislative responsibilities; sometimes you will praise the states as laboratories of democracy for their innovations. I think I can safely assume, for example, that Koppelman opposes the federal Defense of Marriage Act but supports states that have recognized same-sex marriage. If the Republicans take control of the White House and Senate in 2013, would he want them to set a national policy on gay marriage via the commerce power? Merely pointing out that states don’t always follow one’s policy preferences is hardly a strong argument against federalism.

(2) Professor Logan Sawyer of the University of Georgia Law School coincidentally has an excellent piece out on SSRN about the origins of Court’s holding in Hammer v. Dagenhart, the case in which the Supreme Court invalidated a federal child labor statute as beyond Congress’ commerce power. The gist of the piece is that Hammer wasn’t a battle between laissez-faireists and Progressive supporters of national regulation. Rather, after the Lottery Cases, which seemed to establish the federal police power, there was debate among Progressives as to whether there were any limits to this power. One side said no, while the other side insisted, for good “Progressive” reasons (in particular, that participation in local governance is a key to good citizenship), that Commerce Clause doctrine must put some limits on federal power. So there is, in fact, a parallel to 1918 today, but the parallel is not that the Supreme Court is poised to just make up some new doctrine while ignoring social conditions. Rather, the parallel is that there is sentiment among people who otherwise recognize a strong role for national government–as four of the five conservatives on the current Court surely do–that despite past precedents granting a broad commerce power, a significant role for state and local governance must be preserved.

(3) Koppelman suggests that Jonathan Adler and I think argue that child labor “isn’t so bad.” I won’t speak for Jonathan, but I think child labor is bad, certainly if we’re talking about pre-teens working in factories (which all the states banned in any event). [What I actually wrote was, "as one would expect, wealthier states, where parents were less likely to be dependent parents on the labor of their children to avoid starvation, passed earlier and stricter legislation, exactly as it should be in a federal system." (And even federal legislation left child labor on farms to parental discretion, in deference to the fact that family farms often couldn’t survive without the children pitching in.)] But there’s always the question of “compared to what?” I don’t want to go off on a long digression about child labor, so I’ll leave it at this. Child labor laws were not motivated solely by humanitarian considerations, and depending on context, could have significant anti-humanitarian consequences. Just consider that child labor laws, including the federal laws that came before the Supreme Court, were not typically accompanied by social welfare legislation providing income support to families whose children were working because the alternative was not having adequate food and housing. [So desperate families could either be malnourished or send their kids off to work in the black market; either way, many kids would be worse off, which provides an explanation of why the poorest states had less stringent child labor laws than what the federal government tried to impose.] Consider also that the wave of national sentiment favoring child labor laws corresponded with a wave of sentiment favoring legislation keeping women out of the workplace, and severely restricting immigration. This was not a coincidence. It shouldn’t really come as a surprise that the history of these matters is rather more complicated than the morality tales we learned in civics class.

President Obama said the following today when asked about the constitutional litigation over the ACA:

Well, first of all, let me be very specific. We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner. Right? So we’re going back to the ’30s, pre New Deal.

In turn, James Taranto took Obama to task for wildly misciting Lochner:

In fact, Lochner–about which more in a moment–was decided in 1905. Thirty years later, after the New Deal had begun, the high court unanimously struck down one of its main components, the National Industrial Recovery Act, as exceeding Congress’s authority under the Interstate Commerce Clause. The case was A.L.A. Schechter Poultry Corp. v. U.S. (1935).

It is true that in subsequent New Deal cases, the court vastly expanded Congress’s power to regulate “interstate commerce,” although it has never done what the administration asks it to do now, namely authorize Congress to force individuals to engage in commerce. Obama seems to have been trying to make the accurate observation that since the ’30s the court has not struck down a federal law that applies to economic activity on the ground that it exceeds Congress’s Commerce Clause authority.

But in citing Lochner, the president showed himself to be in over his head.

The full name of the case, Lochner v. New York, should be a sufficient tip-off. In Lochner the court invalidated a state labor regulation on the ground that it violated the “liberty of contract,” which the court held was an aspect of liberty protected by the 14th Amendment’s Due Process Clause….

Lochner, which was effectively reversed in a series of post-New Deal decisions, did not involve a federal law–contrary to the president’s claim–and thus had nothing to do with the Commerce Clause, which concerns only the powers of Congress.

When a reader sent me these links, my initial inclination was to defend the president. I wrote to my correspondent, “I think Obama probably meant “Lochner” as in “the Lochner era”, or was using a shorthand, as liberals often do, of “Lochner” as the group of cases in which the Court invalidated economic regulations before the New Deal, regardless of the clause.”

But then I remembered the last time President Obama expressed his views on Lochner v. New York, when he was still a Senator from Illinois, criticizing D.C. Circuit nominee Janice Brown:

For those who pay attention to legal argument, one of the things that is most troubling is Justice Brown’s approval of the Lochner era of the Supreme Court. In the Lochner case, and in a whole series of cases prior to Lochner being overturned, the Supreme Court consistently overturned basic measures like minimum wage laws, child labor safety laws, and rights to organize, deeming those laws as somehow violating a constitutional right to private property. The basic argument in Lochner was you can’t regulate the free market because it is going to constrain people’s use of their private property. Keep in mind that that same judicial philosophy was the underpinning of Dred Scott, the ruling that overturned the Missouri Compromise and said that it was unconstitutional to forbid slavery from being imported into the free States.

That same judicial philosophy essentially stopped every effort by Franklin Delano Roosevelt to overcome the enormous distress and suffering that occurred during the Great Depression. It was ultimately overturned because Justices, such as Oliver Wendell Holmes, realized that if Supreme Court Justices can overturn any economic regulation — Social Security, minimum wage, basic zoning laws, and so forth — then they would be usurping the rights of a democratically constituted legislature. Suddenly they would be elevated to the point where they were in charge as opposed to democracy being in charge.

Back in 2011, I annotated nine separate misstatements in these two paragraphs. So maybe Taranto’s correct, and the president should stick to politicking and stay away from constitutional history. Obama could have avoided all of this by heeding my op-ed noting that Lochner has nothing to do with the health care litigation, except as crude propagandistic rhetoric [update: as in this Huff Post by Prof. Jamin Raskin, which has a breathtakingly ignorant (willful or not?) paragraph about Lochner and the liberty of contract doctrine]. (Not to suggest, of course, that I think the president reads my op-eds!)

My friend and sometimes intellectual sparring partner, Andrew Koppelman, writes:

The obsessive worry about an overbearing federal government suggests another historical parallel. In 1916, Congress banned the interstate shipment of the products of child labor. The rhetoric was as hysterical then as it is now: The Court declared that if Congress could do this, “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.” The Supreme Court’s invalidation of the law astounded even those who had most strenuously opposed enactment and provoked a wave of national revulsion and the rapid enactment of a second law — a tax on products of child labor — which the Court also struck down, in 1922. The decision was overruled in 1941. The Court did not save America; what it actually accomplished was to thwart democracy – the law passed by 337-46 in the House and 52-12 in the Senate – and consign large numbers of children to the textile mills for two decades.

First, by preserving limitations on the Commerce power, the Court did in a sense save America. In 1935, the Supreme Court unanimously invalidated the National Industrial Recovery Act, surely (along with the first Agricultural Adjustment Act, also invalidated by the Court), the single worst piece of national legislation in the the twentieth century, if not all of American history. (The Act cartelized, with government enforcement, every significant American industry). The Court invalidated the Act both for an overbroad delegation of legislative authority to the present, and because, as in the child labor cases, Congress was purporting to regulate local activity under the authority of its power to regulate interstate commerce. Historians will tell you that the NIRA was already quite unpopular by then. But it’s not at all clear that the law was on its way to repeal any time soon, the NIRA being the centerpiece of the New Deal.

Second, as I’ve noted before, the Supreme Court’s invalidation of federal child labor legislation didn’t mean there were no child labor laws. By the end of the so-called Lochner era in the late 1930s, every one of the forty-eight states had laws banning and regulating child labor. Unlike the national Fair Labor Standards Act passed in 1938, most of these laws restricted children under fourteen, as opposed to sixteen, though a sixteen-year rule was gradually gaining traction. As one would expect, wealthier states, where parents were less likely to be dependent parents on the labor of their children to avoid starvation, passed earlier and stricter legislation, exactly as it should be in a federal system. (And even federal legislation left child labor on farms to parental discretion, in deference to the fact that family farms often couldn’t survive without the children pitching in.)

So I take different lessons from the child labor cases than Koppelman does. First, yes limiting federal power can and has prevented tyranny, as with the NIRA. (Not surprisingly, liberal commentators love to talk about the child labor cases, but not about Schechter Poultry, which invalidated the NIRA, a law I doubt anyone would support today.) And second, the invalidation of federal legislation dealing with what’s perceived as a “national” problem will simply put the ball in the states’ court, and I’m not at all convinced that “race to the bottom” factors outweigh the benefits of interstate competition, the ability of states to tailor laws to local conditions, and the inability of states, unlike the federal government, to bankrupt the entire country through ill-conceived entitlements.