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I'm hardly the first person to make this point, but it's one that bears repeating: While conservatives are preparing to pack the Supreme Court and the rest of the federal judiciary with right-wing judges who will seek to overturn Roe v. Wade, their real aim is a stealth campaign against the New Deal interpretation of the Interstate Commerce Clause (ICC).

Don't get me wrong: Roe and other hot-button social issues matter a great deal. But the power to destroy the ICC has much more far-reaching consequences. So it's nice to see a contributor on the NYT editorial page get it:

If the Supreme Court drifts rightward in the next four years, as seems likely, it could not only roll back Congress's Commerce Clause powers, but also revive other dangerous doctrines. Before 1937, the court invoked "liberty of contract" to strike down a Nebraska law regulating the weight of bread loaves, which kept buyers from being cheated, and a New York law setting a maximum 10-hour workday. Randy Barnett, the law professor who represented the medical marijuana users, argues in a new book that minimum wage laws infringe on "the fundamental natural right of freedom of contract."

In pre-1937 America, workers were exploited, factories were free to pollute, and old people were generally poor when they retired. This is not an agenda the public would be likely to sign onto today if it were debated in an election. But conservatives, who like to complain about activist liberal judges, could achieve their anti-New Deal agenda through judicial activism on the right. Judges could use the so-called Constitution-in-Exile to declare laws on workplace safety, environmental protection and civil rights unconstitutional.

Right now, you might say, if the Supreme Court draws down Congress's power, that wouldn't be so bad - after all, the Republicans are in charge. But as the editorial indicates, the consequences would be much more far-reaching. All kinds of past legislation could be jeopardized - the kinds of programs and laws that only the national government has the ability to enact, like Social Security. And when the Democrats are back in power, they might find a Congress that is utterly neutered.

Unfortunately, this is an issue which doesn't capture the public imagination, or even the interest of most liberal activist groups. I'm not sure there's much we can do, except perhaps oppose the worst of these "Constitution-in-Exile" type judges, and expose them for what they are:

The attacks on the post-1937 view of the Constitution are becoming more mainstream among Republicans. One of President Bush's nominees to the United States Court of Appeals for the Ninth Circuit, Janice Rogers Brown, has called the "revolution of 1937" a disaster.

Every time someone like this comes up for a nomination, we need to say that they want to make Social Security illegal. Not get rid of it - make it illegal. They want to make the minimum wage illegal. They want to make clean water laws illegal. This is not a mis-statement or exaggeration of their position. This is exactly what they propose.

I'm going to conclude with a final thought. The editorial - which I strongly encourage you to read - leaves out some of the backstory to the "revolution of 1937." FDR and the Congress had repeatedly passed all types of legislation to combat the Depression, as part of the New Deal. The Supreme Court struck these laws down again and again.

Finally, in his second term, Roosevelt was able to appoint new justices with a modern view of Congressional power. From 1937 on, the court upheld all manner of New Deal legislation, with Wickard v. Filburn being the high-water mark of the ICC power.

My constitutional law professor asked whether the post-1937 court was "better" than the pre-1937 court - not on political grounds, but on principle. He answered his own question by saying "Yes." His reason was simple: The post-1937 court wasn't requiring Congress to act - it didn't say that various New Deal legislation was obligatory. Rather, it allowed the democratically elected Congress and President to legislate over the economy as they saw fit.

The pre-1937 court, by contrast, imposed its own judgment on what was appropriate for the economy, in an enormous range of cases. So do we want an unelected and unaccountable Supreme Court which decides national economic policy, or do we want to reserve that power to our elected represenatives in Congress?

The answer to me couldn't be more clear. It's also clear to movement conservatives and the Federalist Society. Unfortunately, they've reached the exact opposite conclusion, and we must do everything in our power to stop them.

P.S. Armando, of course, wrote about the ICC last weekend, and Categorically Imperative diaried about it recently, too.

Update [2004-12-14 16:57:38 by DavidNYC]: DreamofPeace reminds us of what the pre-1937 world looked like.

Originally posted to Daily Kos on Tue Dec 14, 2004 at 01:05 PM PST.

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