Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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
by JB [link]
Is it possible that businesses could have pushed for a preemption theory of federal antilabor laws? I don't know if this is true or not, but it is possible that different states had very different rules governing labor unions. These differences could have arguably caused an interference with interstate commerce, thereby necessitating the federal government to step in and implement a uniform set of laws.
This line of argument, whether or not it would have worked 100 years ago, is very much in vogue today among conservatives, as it has been used to push for tort "reform," class action "reform," etc.