Reading the "Public Use" clause

DavidEBernstein at DavidEBernstein at
Fri Jun 24 12:16:57 PDT 2005

I don't know that we disagree regarding whether free markets will provide 
"the poor", or all the poor, with the basic necessities of life.  But Hughes used 
a similar phrase in West Coast Hotel, and I'm pretty confident that the major 
effect of a minimum wage law for women only would have been to deprive many 
of them of work, as Sutherland pointed out in Adkins.  More generally, if one 
looks at the major controversial due process cases of the Lochner period that 
overturned state legislation--Lochner itself, Coppage, Adair, Jay Burns Baking, 
Meyer, Pierce, New State Ice, Buchanan v. Warley, Adkins, Wolff Packing Co., 
Louis K. Liggett Co., etc., I find it difficult to agree that overall these 
cases could be said to be about redistribution to the poor, or that the poor 
would have been better off if these cases came out the other way.  [The 
Progressives and New Dealers believed this, largely because they believed that economic 
progress for the poor would come through the labor movement, and these 
decisions, as a whole, did weaken labor unions.]  But I don't see any challenge in 
these cases to the idea that the government may redistribute tax money to the 
poor.  Nor was Blaisdell about that; certainly looking back we can at least 
appreciate,if not agree with, why the four conservative dissenters, seeing the 
evils of Bolshevism and Naziism resulting from economic  and social crises in 
Europe, were insistent on sticking to the letter of constitutional limitations 
on government power in the 1930s.  They believed the Constitution was a bulwark 
against authoritarianism (I have a great cartoon from 1938 showing the 
Statute of Liberty holding up the Constitution to defend America against foreign 
"isms.")  The other side believed that the government could solve the social 
crisis, and avoid problems that way.  Fair enough, but  not really a debate about 

In a message dated 6/24/2005 2:17:42 PM Eastern Standard Time, 
SLevinson at writes:
As to Coppage, I don't use the notorious dicta to make the judges "look like 
ogres" so much as for its excellence in summarizing a basic point of view 
about the relationship between free-market ideology and (in)equality.  I have no 
dispute with David that the poor may be "most in need of contractual rights."  
Where we disagree, I suspect, is whether that will be sufficient to provide 
the poor with what Hughes in Blaisdell labeled the basic necessities of life.  
If not, as I think is the case, then the key question is whether the state can 
take from taxpayers A,B, and C to give to indigent persons X, Y, and Z, where 
there is no particularly plausible argument that A,B, and C "benefit" other 
than from the knowledge that there is less suffering in the world.  (Of course, 
Richard Posner defends the welfare state on the forthright ground that it is a 
cheap way to buy a certain level of insurance against rebellion by the poor.)
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