George Will recently argued that it was unconstitutional for states to set maximum hour limits for certain workers, a view that the Supreme Court took in 1905, but repudiated in 1936. Will's argument also put him at odds with seven of the nine current Supreme Court justices, including Chief Justice John Roberts and Associate Justices Antonin Scalia, Clarence Thomas, and Samuel Alito. Even Will himself once opposed the decision striking down maximum hour laws.
Now, Will has turned to attacking business regulation more generally. In today's Washington Post, without pointing to any provision in the Constitution to back him up, Will adopted the argument that "the Constitution protects the individual's right to earn a living free from unreasonable regulation." That might be all well and good in the abstract, but in practice, such a doctrine would put minimum wage laws (it would be unconstitutional to stop an individual from "earn[ing] a living" if she had decided to accept a job that pays $3 per hour), as well as child labor laws, at risk.
Vong, 47, left Vietnam in 1982, and after stops in Indonesia, Thailand, Taiwan and Hong Kong, settled in San Francisco and lived there for 20 years before coming here to open a nail salon with a difference. Her salon offered $30 fish therapy, wherein small fish from China nibble dead skin from people's feet. Arizona's Board of Cosmetology decided the fish were performing pedicures, and because all pedicure instruments must be sterilized and fish cannot be, the therapy must be discontinued. Vong lost her more-than-$50,000 investment in fish tanks and other equipment, and some customers. Three of her employees lost their jobs.
The plucky litigators at the Goldwater Institute are representing Vong in arguing that the Constitution protects the individual's right to earn a living free from unreasonable regulations. In a 1932 case (overturning an Oklahoma law requiring a new ice company to prove a "public need" for it), the U.S. Supreme Court said that the law's tendency was to "foster monopoly in the hands of existing establishments." The court also said:
"The principle is imbedded in our constitutional system that there are certain essentials of liberty with which the state is not entitled to dispense. . . . The theory of experimentation in censorship [is] not permitted to interfere with the fundamental doctrine of the freedom of the press. The opportunity to apply one's labor and skill in an ordinary occupation with proper regard for all reasonable regulations is no less entitled to protection."
Unfortunately, soon after 1932, New Deal progressivism washed over the courts, which became derelict regarding their duty to protect economic liberty.
The move to take us back to the Gilded Age started at the fringe, has moved to Fox News, and now has a prominent place on The Washington Post's op-ed page.
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?
George Will has joined the Fox News-led crusade to overturn the 20th century.
In his Washington Post column, Will argued that the Supreme Court "correctly decided Lochner v. New York" and that the opinion remains "relevant to current arguments," lauding David Bernstein's Rehabilitating Lochner: Defending Individual Rights against Progressive Reform.
The Lochner decision, decided in 1905, struck down a New York State law regulating maximum hours for bakery workers. Will explained:
An 1895 New York law limited bakery employees to working 10 hours a day and 60 hours a week. Ostensibly, this was health and safety legislation; actually, it was rent-seeking by large, unionized bakeries and the unions. Corporate bakeries supported the legislation, which burdened their small, family-owned competitors. The bakers union hoped to suppress the small, non-unionized bakeries that depended on flexible work schedules.
One such was owned by Joseph Lochner, who challenged the law, prevailing in the Supreme Court, 5 to 4. The majority said "clean and wholesome bread" does not depend on limiting workers' hours: Workers are "in no sense wards of the state," and there is no evidence that baking is an especially unhealthful profession, so the law was an unconstitutional "interference" with an unenumerated right of individuals, the liberty of contract.
The court essentially nullified its decision in 1936, and states and the federal government have since been free to enact maximum hour laws, minimum wage laws, and the like to great public approval. Without such laws there would be no weekend. But according to Will, the Lochner opinion "flowed from bedrock American doctrine" of "liberty of contract," only to be "reviled" by liberals.
Contrary to Will's mythology, Lochner is in no way a liberal bogeyman.
In his syndicated Washington Post column, chronic climate change misinformer George Will falsely suggested that a supposed "global cooling" scare in the 1970's is comparable to the current scientific consensus on global warming.
After relentlessly pushing the false claim that the so-called "Climategate" controversy showed climate scientists deceitfully manipulating data, conservative media are celebrating a Rasmussen Reports poll finding that a majority of Americans believe "some scientists" have likely "falsified research data" to support "their own theories and beliefs about global warming."
Glenn Beck may be gone from Fox News, but it looks like he has left a giant mark on the network. Five days after his final Fox News show, George Will parroted some of Beck's outlandish claims on ABC's This Week in attacks on Woodrow Wilson and progressives, who were two of Beck's most favored targets to demonize.
On Friday, it was Mike Huckabee's turn to assume the role of Beck puppet when he likened President Obama's economic policies to dropping "a lit match" into a "can of gasoline."
The reason Huckabee's comments seem so familiar is because they are eerily reminiscent of Beck's unforgettable gag in April 2009 in which he claimed to be imitating Obama pouring gasoline -- which Beck later stated was water -- on an actor portraying "the average American." During his demonsration, Beck asked, "President Obama, why don't you just set us on fire?"
Unfortunately, Huckabee's appearance on Your World With Neil Cavuto on Friday is evidence that Beck's bizarre and dangerous tactics have left their mark, and are being spread by other Fox commentators in his absence.
Glenn Beck may have departed Fox News, but his wacky crusades live on, in some unlikely places through some unlikely messengers.
In a discussion of the Constitution on the July 3 edition of ABC's This Week, host Christiane Amanpour asked panelist George Will whether he thought the Constitution was "under siege," as conservative activists have claimed. Will responded: "It has been for a century. Woodrow Wilson, probably the rest of the progressive movement, set out to say, the Constitution was all very well once, but now we're a more complicated society with more grand ambitions for the government, and therefore what the founders did, which was to put the government on a short leash, has to be undone, we have to cut the leash on government. And that's what the progressive project has been through a century."
Later, when Amanpour asked Will who his favorite founding father was, Will said that it was James Madison, adding a weird Ivy League-centric twist: "The argument we're having today is whether James Madison of the Princeton class of 1771 can save the Constitution from Woodrow Wilson of the Princeton class of 1879 and the progressive movement. It's an intramural argument at Princeton."
Sound familiar? Check out these clips from Beck's TV and radio shows:
What's next? Will warning us not to tease the panther?
From the July 3 edition of ABC's This Week:
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From the July 3 edition of ABC's This Week:
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Conservative media figures continue to claim that the National Labor Relations Board is attacking states with lax labor laws and engaging in "unprecedented" actions by filing a complaint alleging that Boeing violated federal labor laws in connection with its decision to move the production line for its new 787 Dreamliner to South Carolina. In fact, labor law experts say that if the allegations against Boeing are true, the NLRB has presented a "classic" case of labor law violations.
As I've frequently pointed out, the fact that columnist Richard Cohen is what passes for a "liberal" at the Washington Post pretty thoroughly undermines the idea that the paper's opinion pages lean to the left. In response, people have occasionally asked me "Who says Cohen is supposed to be a liberal?" Well, now, the Post has removed any doubt about the role it thinks Cohen plays at the paper, officially designating him a "left-leaning" columnist:
Dana Milbank is the kind of "left-leaning" columnist who voted for Republican presidential candidates in 2000 and 2004 and a Republican-turned-independent in 2008. And who referred to Hillary Clinton as a "mad bitch." Just try to imagine the Post identifying as "right-leaning" a columnist who voted for Democratic presidential candidates in 2000 and 2004 and called Sarah Palin a "mad bitch."
But it's Richard Cohen's presence on the "left-leaning" list that's really remarkable. Here's a refresher:
If there was an award for disingenuous sanctimony, Washington Post columnist George Will would be a runaway favorite for his assault on organized labor:
This capital has been convulsed by government employees sowing disorder in order to repeal an election.
Absurd. Wisconsin union members are simply seeking to influence the legislative process. That doesn't constitute an effort "to repeal an election" any more than does the Chamber of Commerce lobbying on behalf of tax cuts, or the National Right to Life Committee lobbying on behalf of restrictions on abortion. Individuals, interest groups and businesses attempt to influence the legislative process every day -- but Will singles out only union members as trying to "repeal an election" by doing so.
Will, continuing directly:
A minority of the minority of Wisconsin residents who work for government (300,000 of them) are resisting changes to benefits that most of Wisconsin's 5.6 million residents resent financing.
Again, disingenuous nonsense. The workers' central complaint is not that they face "changes to benefits," but that Wisconsin governor Scott Walker is attempting to drastically limit their collective bargaining rights, as is made clear by a Milwaukee Journal-Sentinel article headlined "State workers willing to bend on concessions, not bargaining rights":
State workers signaled Monday they could accept benefit cuts proposed by Gov. Scott Walker even as they prepared to battle with Walker over his plan to cut most of their union bargaining rights.
Will continues is assault on reality by praising Walker's "fiscal seriousness."
A few days after President Obama submitted a budget that would increase the federal deficit, he tried to sabotage Wisconsin's progress toward solvency. … Walker, by a fiscal seriousness contrasting with Obama's lack thereof, and Obama, by inciting defenders of the indefensible, have made three things clear…
In fact, Walker has pushed tax cuts that make Wisconsin's budget deficit worse. Will criticizes Obama for submitting a budget that would increase the federal deficit, then praises Walker for "fiscal seriousness" in contrast to Obama, even though Walker has pushed tax policy that would … increase his state's deficit. Clearly, then, Will's real interest is not "fiscal seriousness" -- it's scoring partisan points, justifying budget-busting tax cuts, or both.
From the February 20 edition of ABC's This Week with Christiane Amanpour:
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In his Washington Post column on Sunday, George Will celebrated the U.S. Supreme Court's decision 10 years ago to end the recount of votes in Florida and name George W. Bush as the next president. And in doing so, he misrepresented history.
Will's defense of Bush v. Gore essentially boils down to a claim that Al Gore started it by going to court in the first place, so he got what he deserved. Will writes:
Once Gore initiated the intervention of courts, the U.S. Constitution was implicated. On Nov. 7, Gore finished second in Florida's Election Day vote count. A few days later, after the state's mandatory (in close elections) machine recount, he again finished second. Florida law required counties to certify their results in seven days, by Nov. 14.
Once Gore summoned judicial intervention, and Florida's Supreme Court began to revise state election law, it probably was inevitable that possession of the nation's highest political office was going to be determined by a state's highest court or the nation's. The U.S. Supreme Court was duty-bound not to defer to a state court that was patently misinterpreting - disregarding, actually - state law pertaining to a matter assigned by the U.S. Constitution to state legislatures. [emphases added]
That strikes me as a frivolous argument. If Bush had started the process by going to court to overturn what elected officials were doing, does that mean the Supreme Court should have intervened in favor of Gore?
Actually, we know the answer to that question. And it shows just how wrong Will's column is. Gore, in fact, didn't go to court first. Bush was the one who first ran to the courts to try to intervene in the election. After election day in 2000, several Florida county election boards decided to conduct a manual recount of ballots to better determine the vote totals. And Bush went to federal court to halt the proceedings. The New York Times headline the next day read: "BUSH SUES TO HALT HAND RECOUNT IN FLORIDA." (Bush ultimately lost that case, although he obviously won the court case that mattered most.)
From the October 31 edition of ABC News' This Week with Christiane Amanpour:
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