Friday, December 17, 2004

Dreaming About a Victorian Revival

I read a book about Victorian England last night. The nineteenth century was not a good time to be poor. The tenements were full of families slowly starving to death. Work was at the will and on the terms of the employer, and there was no medical insurance or old age pensions for the poor. What they had, of course, was the ability to have very large families which they then couldn't feed. If the children survived, they might be lucky to find work in the mines and other places where being small was an advantage.

Of course I then dreamt about this, with the expected twist of having it all happen in the Bush era. For this is the direction to which the Republican party is slowly but surely steering the country. The privatization of Social Security is just one of the first baby steps in their long-range plans. Once privatization and cutting the benefits is accepted by all and sundry, it won't take very long before those who are better off will refuse to pay anything towards the old-age security of others. Let the churches take care of them! Well, that's what they said in the Victorian England, too.

An important obstacle in the way of this Victorian revival is the Interstate Commerce Clause. This innocent-looking clause is what is used as the constitutional hook to justify various laws, from those banning the use of child labor, through the civil rights laws of the 1960s to environmental protection. If this clause could be killed, the road to serfdom to some, great riches to others, would be so much easier to navigate. It is not likely to happen right now, but maybe in the not-so-distant future:

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.

Think of that. Scary, isn't it? Perhaps I'm exaggerating the threat here, but it seems that something strong is needed to counteract the constant hum from the media wingnuts (Social Security is in trouble! Culture of death! The poor at the teats of the government! Christians are oppressed!), the slow eradication of anything based on the moral values of fairness, justice and compassion.