Mike Lee, the newly-elected Republican Senator from Utah, has given a speech in which he apparently advocates for an interpretation of Congress' powers under the Commerce Clause of the Constitution which is so narrow as to preclude Congress from enacting child labor laws. Lee cites a 1918 Supreme Court decision in support of this interpretation; that decision was effectively overruled by another decision 20 years later.
As a number of commentators have noted, were we to return to Lee's preferred interpretation of the Constitution, not only would Federal child labor law statutes be unconstitutional, but so would Federal minimum wage laws, Social Security and Medicare/Medicaid and civil rights laws requiring non-discrimination in employment and public accomodations. I believe that Lee's position would also prohibit Federal labor laws, workplace safety laws, and a host of other contemporary Federal regulatory provisions.
I'm no Constitutional scholar, so I can't speak to specifics of the Supreme Court cases involved. But here's what I do know: There are two schools of thought regarding the interpretation and reach of the Commerce Clause. One school, represented by the 1918 case and apparently preferred by Lee, narrowly interprets the clause. The other school, represented by the 1938 case, and consistently upheld, re-affirmed and buttressed by over 70 years of Supreme Court jurisprudence, interprets the Commerce Clause more broadly. Much, if not all, of the Federal Government's current regulatory structure is premised upon this latter interpretation. It appears that all of the current Supreme Court Justices (except for Clarence Thomas) support, to a greater or lesser degree, the current, broader interpretation of the Commerce Clause.
Lee claims that he doesn't favor child labor, and I think we can take him at his word. He believes that child labor would have disappeared anyway. It's not clear whether Lee thinks that the marketplace would have acted to eliminate child labor (which seems incredibly naive) or whether states would have prohibited it. But Lee clearly hasn't thought through the implications of his position from a policy perspective, since a return to this narrow Constitutional intepretation is likely to result in the re-emergence of child labor, and most of the other ills that Federal legislation currently prhibits. In all probability, most states would prohibit child labor. But there would, inevitably, be one or two states which, in order to attract industry, would either refuse to outlaw it or would adopt laws that are so limited in scope or weak that they would, in effect, tacitly permit children to work. (Or, alternatively, some state would have prohibitory laws on the books but would consistently fail to enforce them.) Businesses and industries that want to take advantage of cheap child labor would flock to that state or states, to the disadvantage of states prohibiting child labor. This in turn puts economic pressure on the states with child labor laws, ultimately forcing them to either repeal those laws or refuse to enforce them, in order to compete. The same dynamic would apply to state minimum wage laws.
So the obvious question here is: Why is Lee promoting this ancient, long-since overruled interpretation?
One possibility, not to be dismissed lightly, is that Lee is just trying to impress us by how smart he is. Look, he's saying, I'm not Sharon Angle, Christine O'Donnell or Sarah Palin; I can cite Supreme Court cases from 100 years ago, I'm a smart lawyer, I've studied the law and history.
I believe that Lee's real motivation has less to do with Constitutional scholarship and more to do with a belief that the Federal Government and the people who run it regardless of which party is in power are permanently in opposition to the philosophy of people like Lee. Lee wants to diminish the power and authority of the Federal Government because he opposes the concept of regulation, of social safety nets and of taxation as a means of redistribution of wealth. Much as the South immediately prior to the Civil War seized on states rights as a principle, not for its own sake, but to attempt to protect the institution of slavery, Lee and other "Constitutional Conservatives" advocate a view of the Constitution that was rejected nearly 100 years ago, not based on a purely intellectual belief that current jurisprudence is wrong, but because their political goal is to reverse the effects of the New Deal. Knowing that they can't accomplish that goal through the electoral or legislative process--because it is incredibly unpopular--they hope to effect this change through the courts.
Look, as with many issues of Constitutional interpretation, there are at least two approaches to the question of the scope of the Commerce Clause--narrower and broader. I don't know that there is any clear and convincing analysis which could prove one approach to be "correct" and the other to be "incorrect". For the last 80 years or so, the Court, and the country, has operated under and relied on the broader interpretation. I, for one, prefer to live in a country which has the broader interpretation, and allows the Federal Government to be active in this area.
It's not just that I believe that we are better off when the free market is subject to appropriate regulation, and that such regulation is most effective when done at the national, rather than state level. The other part of it--and this is where Lee and his allies really need to come to grips with the implications of their political position--is that the U.S. will be unable to compete in the worldwide marketplace without a strong national government, regulating competition and business and helping to guide investment decisions. Every major economy in the world has strong central government, providing subsidies and other support for 21st century businesses. The consequences of Lee's views would be, in all likelihood, to place the U.S. in the second rank of countries.
