Back to the Future with Scott Walker
If you want to catch a glimpse of what America would look like under President Scott Walker, you need to turn back the clock to one of the darkest periods in 20th century American history – the Lochner Era.
Here’s a little history lesson just in case you don’t know what I’m talking about. In the early 1900s, a bakery owner named Joseph Lochner sued the state of New York over its Bakeshop Act, which limited the number of hours bakery employees could work to 10 hours a day and 60 hours a week.
Lochner lost in the case in the New York Court of Appeals, but when he took it to the Supreme Court in 1905, he got the result he wanted. In a close 5 to 4 decision, the justices struck down the Bakeshop Act, citing Lochner’s right under the 14th Amendment to run his business without “state interference.”
Apparently, the Bakeshop Act violated that most fundamental of liberties -- the right of employers to work their employees to death. No one knew so at the time, but this ended being a big turning point in American history.
From when the Lochner case was decided in 1905 until the mid-1930s, the Supreme Court would go on all-out rampage against workers’ rights.
Over the next few decades it struck down, among other things, child labor laws, minimum wage laws, and laws banning “yellow dog contracts” - contracts that forced workers to say that they wouldn’t join a union.
The guiding principle in most or all of these decisions was the idea that the government’s power to protect workers was limited to protecting their “health and safety.”
Under this line of thinking, things like minimum wage laws were struck down because they went beyond protecting "health and safety" and tried to actually raise the livings standards of American workers. This, the Court said, was a violation of the constitutional “right to contract.”
The Lochner Era, as the period governed by this legal philosophy is called, lasted until 1937, when the Supreme Court ruled in the case of West Coast Hotel Co. v. Parrish that the government did, in fact, have the power to do things like raise the minimum wage and ban child labor.
There is, by the way, no “right to contract” in the Constitution. The Supreme Court made it up, just like it made up corporate personhood and money as speech.
Today, most legal scholars place the Lochner case, as well as the anti-worker decisions that followed it, among the worst decisions in Supreme Court history. They’re basically in the same category as Dred Scott case.
Even Robert Bork called the Lochner case an “abomination” -- and he was about as right-wing as it gets.
Everyone serious thinks the Lochner case was a big mistake. Everyone that is, except for Scott Walker.
As Ian Milhiser has pointed out in a great piece for ThinkProgress, buried deep in Scott Walker’s speech announcing his run for president was a shout-out to the “health and safety” thinking of the Lochner era.
He said, "As long as you don’t violate the health and safety of your neighbors – go out and start your own career, build your own business, live your own life.” Sounds harmless enough , right?
It does, until you remember that this line of thinking was used to strike down child labor laws, minimum wage laws, and basically any kind of law that kept workers from becoming wage slaves.
Of course, there’s always the chance that Walker just spoke out of tune, but given his record as one of the most anti-labor governors around, it’s safe to say that he probably knew exactly what he was talking about. And that’s just terrifying.
Walker is the strongest Republican candidate out there, and he’s backed by a boatload of billionaire money from the Kochs on down. He could very well be our next president, and if he really is on board with this "health and safety" nonsense, then you can kiss the American middle-class goodbye.
The Lochner decision was very weird. People do have the right to enter contracts that are detrimental to themselves (by the 9th & 10th Amdts.), but the government has an obvious overriding power to make contracted actions illegal. It's just odd to try to divide this power according to whether any deleterious effects fall upon one of the contracting parties or on someone else. Harm is harm, and if the general welfare is helped by such a prohibition, then it should be allowed.
I wish Thom would keep repeating his historical evidence about free markets. Thom has often said "free markets always fail". Some key examples are Iraq, Russia and Naomi Klein's examples in "Shock Doctrine".
We can only hope that Walker will be shredded by his fellow crazies on the Republican side.....but I wouldn't bet the farm on it. It's up to ALL of us to study Scott Walker's record very carefully, and educate our friends, neighbors, relatives if Walker wins the Republican nomination.
We are told ad nausem, "Iran is the largest supporter of terrorism!" Please support that claim. Who? When?
If we are talking about aid to desperately poor Palestinians maybe that's not such a good case. Who's supporting ISiS? Is the claim about Iran and terrorism mostly propaganda by our side? How about some details rather than an unchallenged "everybody knows"? Are we just misreading the Shia-Sunni religious conflict?