As we pointed out last week, George Will hyped a book by law professor David Bernstein that aims to defend Lochner v. New York, a much-reviled 1905 Supreme Court decision that struck down a New York state law regulating maximum hours for bakery workers. Bernstein has now set his sights on the federal law that outlaws child labor.
Yesterday, Bernstein wrote a blog post responding to a Center for American Progress report that highlights the fact that tea party hardliners believe we should "return to the world where federal child labor laws are unconstitutional."
Bernstein responded: "Shocking! Or maybe not so much." He continued:
As I pointed out recently, by the time Hammer was overruled in the late 1930s
every one of the forty-eight states had laws banning [for younger kids] and regulating [for older teens] 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.
And that was seventy-plus years ago; assumedly, the laws would have gotten stricter over time. Federal child labor laws, in short, were a solution in search of a problem. But they have served a useful purpose-providing an easy rhetorical device for those who oppose any meaningful constitutional limits on federal power.
In other words, because the states had banned child labor for children under 14 and might have continued on the path of strengthening their child labor laws, federal child labor laws were superfluous. (Is it really true that all states would have eventually enacted stricter bans on child labor? Even if so, tell that to 15-year-olds in 1938.) But they have served the harmful purpose of allowing the federal government to extend its power.
By the way, as the Center for American Progress mentioned in a section of its report quoted by Bernstein, the Supreme Court unanimously upheld child labor laws in 1941.
Exit question: Is George Will on board with dismantling federal child labor laws, or did he not know what he was getting into when he endorsed Lochner?