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.