There's a good thread going on at Chez DeLong about the Supreme Court's New Deal-era shift to interpret the Commerce Clause to mean "everything Congress might ever think of doing affects interstate commerce, and since Congress has the power to regulate interstate commerce, Congress can do anything." The most egregious example of this jurisprudence is, I think, Wickard v. Filburn, wherein a farmer was prevented from growing wheat to feed his own family.
What irritates me is when the "Congress can do anything" interpretation is discussed in opposition to the Lochner cases, in which the Supreme Court struck down progressive state legislation on the grounds that, basically, the Fourteenth Amendment imposed free market policy on the states. But discussing Lochner as the alternative to Wickard is a false dichotomy. There ought to be a true federalist middle ground here - the federal government doesn't get to control every last kernel of corn, but if states want minimum wage laws, they should be able to have them. No?
Here's my question, since I'm neither a lawyer nor a historian: did the free market extremism of the Lochner-era court lead to a backlash, whereby when the economy went south, the American people put no faith in federalism, and headed immediately for the opposite extreme?
Posted by digamma at July 5, 2004 01:38 AM | TrackBack