More on Vermuele on Living Constitutionalism

Like Orin, I recommend Vermuele’s interesting and thoughtful review essay in the New Republic.

However, I want to take issue with a couple of Vermuele’s historical claims.

(1) The troika do not seriously address this possibility, except to remark that the possibility of “majoritarian abuse” may sometimes require a “robust judicial role.” But we lack a reliable technology for identifying abuses, about which lawyers have no privileged insight, and so some argument is needed to show that adding constitutional review by judges will produce fewer abuses overall. That claim is not obvious, because the judges might themselves create new abuses under the guise of constitutional law, or might prevent legislatures from remedying abuses by local majorities, or by the rich; the judges of an earlier day thought it a patent majoritarian abuse to set minimum wages, or to ban child labor.

I’m not aware of any court that held or implied that it was a “patent majoritarian abuse” to “ban child labor.” Every court decision that I’m aware of held that child labor bans were well within the states’ police power. The U.S. Supreme Court, in its only decision on the issue, held 9-0 that a state may regulate child labor.

The Supreme Court did hold that it was beyond the power of the federal government to ban child labor. This was not, however, an issue of “patent majoritarian abuse” in the sense that
Vermuele seems to be discussing, but the limited authority given in the Constitution to the federal government to regulate internal state affairs. Vermeule seems to agree with David Strauss “that the constitutional text is most forcefully and successfully invoked to settle not controversial questions of rights, but matters of governmental structure that are in some sense arbitrary, such as the minimum age for the presidency.” The question of federal authority over child labor was not a question of “rights,” but of the nation’s federalist structure. In some sense, it’s arbitrary that the federal government is given the power to regulate only “interstate commerce,” not domestic state labor conditions, but that’s what the Constitution says.

(2) Common-law constitutionalism can stumble into a bad equilibrium, in which accumulating precedents converge to an appalling rule. (An example is the gradual development of the law of “liberty of contract” before the New Deal, which the judges invoked to kill off welfare-improving social regulation.)

I’m struggling to come up with an example of a law invalidated by the Supreme Court under the liberty of contract doctrine that was likely “welfare-improving.” Housing segregation? No. Minimum wage laws? The welfare-improving nature of such laws is controversial at best, but in any event the Court only dealt with discriminatory laws that only applied to women, laws that few would defend today. A law establishing a state monopoly on the provision of ice? No. A law banning private schools? No. A law forbidding the existence of for-profit employment agencies? No. A law requiring all labor disputes to be settled by a state-imposed arbitration panel? No. A law requiring that bread meet a maximum weight requirement? No. A bakers’ hours law meant to aid established, unionized bakeries at the expense of their competitors? No. A law banning Chinese merchants in the Phillipines from writing in Chinese? No. The most plausible candidate is laws banning so-called yellow dog contracts (banning the signator from joining a union), but the Supreme Court reversed itself on that issue in 1930.

And even if one could come up with some examples, I think it’s pretty clear that overall the liberty of contract doctrine, as applied by the Supreme Court, had positive social welfare effects. The problem from a social welfare perspective, in fact, is that the Court was far too deferential to state regulation, upholding wasteful and inefficient laws ranging from laws banning the sale of margarine to featherbedding laws requiring “full crews” on railroads.