Reading the "Public Use" clause

Fri Jun 24 16:58:58 PDT 2005

Actually, I did live for several years on an income similar to minimum
wage. And of course I was born in a society where a US minimum wage-level
income would be considered  quite impressive.

However, this is not the kind of issue that can be settled by ad hominem
claims. I certainly agree that many workers 100 years ago had very low
standards of living. Indeed, the vast majority of Americans of that era
were extremely poor by our standards. The key question, however, is not
whether they were badly off but whether maximum hours laws and other
similar policies would make them better off or worse.

Yes, if they could work, say, 48 hrs/week and get the same income as they
did by working 70, they would have been better off. In reality, however,
they would have been making less money, and many would actually have been
fired, as it would have been uneconomical to employ them for fewer hours
per week (a lesson France has learned in recent years even with respect to
much more productive workers than industrial laborers of 100 years ago
were).

As for why people went on strike, I am not an expert on the history of
strikes, but it is important to recognize that labor union members and
strikers were far from representative of the interests of workers as a
whole. For example, the maximum hours law in Lochner was supported not by
low wage workers, but by relatively high wage unskilled workers and their
employers. It was, at least in part, intended to drive the employers of
low wage immigrant workers out of business (leading to these workers
losing their jobs). David Bernstein has written about the conflict between
labor unions and low-wage workers extensively, among other scholars, and I
urge those interested to read his book Only One Place of Redress.

Ilya Somin

On Fri, 24 Jun 2005, Paul Finkelman wrote:

> Since we no longer live in a world where there are NOT maximum hours
> laws, I would urge Sandy, David, Ilya, and anyone else who thinks they
> are unimportant to seriously read the social history of labor in the
> 19th century; look at the lives of miners who literally never saw
> sunlight, going down before daylight and coming up after dark, seven
> days a week. There is an incredible arrogance here from people who have
> probably never spent a day, much less months or years, in a factory or a
> mine.  Do you really believe that the hundreds of thousands (if not
> millions) of workers who went on strike for the 48 hour work week in the
> 19th century did not understand the value of NOT being required to work
> 70 or 80 hours a week by employers who happily fired them  to hire
> others if they would not work those hours?  Were all those workers so
> stupid that they went on strike and risked real hunger to reduce their
> hours, not understanding that they were really better off with a 10 or
> 12 hour work day, seven days a week?   Sandy and I agree on the need to
> have a more compassionate society that is concerned about the poor, but
> I think is notion that maximum hours laws are irrelevant to people's
> lives simply misunderstands what industrial and mining conditions were
> like in the 19th and early 20 centuries.
>
> How about some field research.  I would suggest that the three of you do
> some summer research -- go find a mind deadening factory job, packing
> widgets into boxes, or indeed making boxes, and see how long you last?
> If you can't find such a job, then see if some gas station will let you
> pump gas for minumum wage for 48 hours a week, and see how easy it is.
> Then imagine a work week twice as long.
>
> Sandy's comments may be true in some abstract theoretical world that
> says that maximum hours laws deprive workers of the real opportunity to
> make more money; but in the world of workers' lives life without such
> laws meant early death and misable lives.  Go reread the Brandeis brief
> in Muller and take a look at the serious statistics.  You can find
> similar statistics in hundreds of government reports from the period.
>
> As for minumum wages, go try to live on them.  Again, the economic
> theory means very little to those people who have not seen a raise in
> wages for the last decade because they have minimum wage jobs.
>
> Paul Finkelman
>
> --
> Paul Finkelman
> Chapman Distinguished Professor of Law
> University of Tulsa College of Law
> 3120 East 4th Place
> Tulsa, OK  74105
>
> 918-631-3706 (voice)
> 918-631-2194 (fax)
>
> Paul-Finkelman at utulsa.edu
>
>
>
>
> Sanford Levinson wrote:
>
> >AS a matter of fact, I generally agree with David and Ilya (and most
> >economists) that minimum wage and maximum hour laws are of little actual
> >aid to the poor, and I actually teach Dagenhart with some sympathy for
> >the position that the national law represents an attempt by relatively
> >richer states to protect themselves against the self-exploitation of
> >poorer states.  This doesn't mean that I agree with Justice Day, but I
> >do treat his opinion seriously and, for what it is worth, I am very
> >critical of Holmes's suggestion that the Commerce Clause in effect has
> >no particular purpose (such as freeing up blockages in the national
> >market) and therefore that Congress has power so long as there is a
> >"nexus" with commerce, independent of the purpose of the regulation.
> >This eliminates the "pretext" analysis in paragraph 42 of McCulloch,
> >which I think is unfortunate.  This being said, I also teach my students
> >that if one really wants to help the poor (especially those who can't
> >effectively participate in the economy), one must give them material
> >resources, and the cash to pay for that, whether it is in-kind or cash
> >benefits, must necessarily come from those with the material resources,
> >i.e., the better off; and, of course, I find nothing unconstitutional in
> >such forced exchanges.
> >
> >I don't know that support for a redistributive welfare state commits one
> >to defense of "constitutionally unlimited government power over economic
> >markets."  Though, as suggested in an earlier posting, to the extent
> >that I have argued that Thomas's opinion in Hamdi, say, leads to
> >"constitutionally unlimited presidential power, including the power to
> >order torture and other similar outrages," I recognize that one person's
> >"reasonable" exercise of government power is another person's "arbitrary
> >and unlimited" such exercise.
> >
> >sandy
> >
> >
> >
> >-----Original Message-----
> >From: Ilya Somin [mailto:isomin at fas.harvard.edu]
> >Sent: Friday, June 24, 2005 4:37 PM
> >To: DavidEBernstein at aol.com
> >Cc: Sanford Levinson; jfnbl at earthlink.com; marty.lederman at comcast.net;
> >VOLOKH at law.ucla.edu; conlawprof at lists.ucla.edu
> >Subject: Re: Reading the "Public Use" clause
> >
> >This exchange points to a key issue dividing libertarians and liberals.
> >The latter seem to believe that in order to ensure  an adequate level of
> >redistribution to the poor, government needs to have largely unlimited
> >power over economic affairs. While some libertarians do in fact oppose
> >all redistribution on principle, most (and this certainly includes David
> >and myself), do not necessarily object to redistribution that provides
> >the "basic necessities of life" to those truly unable to care for
> >themselves.
> >We do, however, reject the view that  admitting this entails accepting
> >the need for constitutionally unlimited government power over economic
> >markets. To the contrary, as the cases covered in David's post indicate,
> >such unlimited power often works to the detriment of the poor by
> >enabling the politically more powerful nonpoor to use the power of the
> >state to advance their own interests at the expense of the most
> >disadvantaged members of society.
> >
> >Speaking now purely for myself, I have no objection to a constitutional
> >system that allows government to redistribute wealth to the poor through
> >the tax and spending system. And I think the Spending Clause probably
> >permits this.  On the other hand, I think that the US Constitution
> >appropriately places substantial limits on government's ability to
> >regulate markets and take real property.  Whether these two conclusions
> >are right or not is a much bigger question than I can fully address
> >here.
> >So I'll confine myself to saying that the debate over whether they are
> >inconsistent with each other (or, as I would argue, mutually
> >reinforcing) is perhaps the key issue dividing libertarians and liberals
> >today.
> >
> >Ilya Somin
> >
> >
> >On Fri, 24 Jun 2005 DavidEBernstein at aol.com wrote:
> >
> >
> >
> >>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 redistribution.
> >>
> >>
> >>In a message dated 6/24/2005 2:17:42 PM Eastern Standard Time,
> >>SLevinson at law.utexas.edu 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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