Balkinization: Path Dependence in Constitutional Claims

Path Dependence in Constitutional Claims

Mark Graber points out, correctly, that the order in which constitutional claims arise may lock particular persons and groups into positions they might not have taken if the order were reversed. He asks whether, if federal anti-union legislation had been passed in the early 1900s, progressives who opposed it would have been locked in to support for limited federal power, so that the history of progressive politics (and the country itself) might have been very different.

But this begs the most important question. Under what available constitutional theory in 1900 would business conservatives have pushed for national legislation restricting labor unions (as opposed to state legislation and the use of judicial injunctions)? Any such theory could easily and predictably be employed to promote a whole range of progressive causes, including, among other things, laws concerning antitrust, minimum wages, maximum hours, and collective bargaining. Knock down the constitutional barriers to regulation under the commerce clause and what you will predictably get is a lot of regulation of commerce. As Mark well remembers, the infamous manufacturing/commerce distinction used to such great effect in overturning New Deal statutes first arose in the fights over the scope of the Sherman Anti-Trust Act at the turn of the century. Business conservatives wanted to limit the scope of the Sherman Act, so they naturally devised constitutional theories that helped constrain the scope of federal legislative power.

Thus, the relevant question is not whether progressives might have pushed for limited federal power at the turn of the twentieth century, but why business conservatives didn't push for constitutional theories of maximal federal power. The answer is that they probably understood that they were far better off with theories of limited federal regulatory power; all other things being equal, those theories tended to limit the growth of the regulatory state. It is only after the New Deal that Republicans start thinking of turning the tools of the new constitutional regime against the labor movement that helped spawn that new regime. Hence the Taft Hartley Act arises in the 1940s, after decisions like Darby and Wickard, not in the early 1900s.

It is also important to distinguish federal legislative power from federal judicial power. Progressives in the first third of the 20th century often emphasized federalism when they wished to resist federal judicial power to strike down state statutes (Brandeis' dissent in New State Ice Company v. Liebman, 285 U. S. 262 (1932) is the canonical reference). But this was consistent with general approbation for judicial restraint and democratic self-government, two familiar progressive themes. Progressives had far fewer qualms about federal legislative power, in part because they believed that many social problems-- like child labor-- were exacerbated by the competitive advantage that states that refused to regulate had over those who regulated.

My guess is that progressive support for national legislative power was not accidental or the result of path dependence. Rather, it was overdetermined by a wide range of factors in the early 20th century; symmetrical concerns overdetermined the constitutional positions of business conservatives. However, progressive support for federal judicial restraint in the area of civil rights was more likely a product of the sort of path dependence that Mark talks about. There were a number of different areas in which progressives-- who were by then turning into what later would be called liberals-- might have supported increased federal judicial power to protect individual rights. These issues were certainly present during the 1910s and 1920s, but the struggle over economic issues dominated them.

Posted 1:55 PM by JB [link]