The framers of our Constitution met in 1787 because the weak national governance adopted by the Articles of Confederation utterly failed. Their goal, in their own words, was to ensure that the federal government had the power to “legislate in all cases for the general interests of the Union, and also in those to which the States are separately incompetent.” National leaders must have the ability to address national problems, and this is especially true with respect to the national economy. As the Supreme Court explained very early in American history, there is “no sort of trade” that our national leaders cannot regulate, and the the power to regulate something “implies in its nature full power over the thing to be regulated,” so long as Congress does not trample the individual protected elsewhere in the Constitution.
Few living Americans have done more to undermine this vision than Randy Barnett, a Georgetown law professor and one of the leading architects of the lawsuits challenging the Affordable Care Act. In an interview with NPR yesterday, Barnett admitted just how far he’d like to go in reimagining the Constitution if his attack on health reform succeeds:
Now comes the Obama health care overhaul, known as the ACA, the Affordable Care Act, a law under full assault by the modern conservative movement. Some, like Georgetown Law Center professor Randy Barnett, the architect of the challenge, say openly that they believe many of the New Deal cases were wrongly decided.
Tenther Law Professor Randy Barnett
“They are well-settled precedents and are not likely to be revisited in my lifetime,” Barnett says. “But I do think that according to the original meaning of the Constitution, they were wrongly decided.“
To translate this a bit, in the late Nineteenth and early Twentieth Centuries the Supreme Court abandoned the framers’ objective of ensuring that national problems can be addressed by our national democracy to impose unprecedented new limits on Congress’ authority. The “New Deal cases” Barnett objects to rejected the fake constitution that dominated the pre-New Deal era. If Barnett succeeds in restoring this fake constitution, he would usher in a far meaner and less prosperous America:
- Child Labor: One of the seminal cases from this discredited era is Hammer v. Dagenhardt, which struck down a national child labor law. If the New Deal cases Barnett despises were overruled, the longstanding federal protections against exploiting child workers would cease to exist.
- No Minimum Wage: A key New Deal case, United States v. Darby, upheld a national minimum wage and overtime laws. If Darby were overruled, these and other basic labor protections would also cease to exist.
- Whites-Only Lunch Counters: The Court also relied on cases like Darby in upholding basic civil rights protections, including the ban on whites-only lunch counters. Barnett’s fake constitution would almost certainly eliminate most of the legislative progress of the Civil Rights Era.
- The Right to Organize: The pre-New Deal justices also struck down laws ensuring workers’ right to organize into labor unions. Restoring their fake constitution would bring this decision back to life.
In other words, the fake constitution espoused by the anti-health reform case’s chief architect would roll back nearly one hundred years of progress — leaving poor children, minorities, workers and women out in the cold. If he wins in the Supreme Court next month, any of the great legislative victories of the New Deal and Civil Rights Eras could be next on the chopping block.