New GOP senator: Federal ban on child labor is unconstitutional

[jimmy olsen]

Even if one believes this, a senator should be savy enough to realize there is no way this is going to be reversed and that it's  politically disadvantageous to even bring it up. Conclusion, the man's a retard.

http://www.rawstory.com/rs/2011/01/17/gop-senator-calls-federal-laws-child-labor-unconstitutional/#

GOP senator: Federal ban on child labor is unconstitutional

By
Monday, January 17th, 2011 -- 8:27 am

Newly minted Republican Sen. Mike Lee of Utah said in a lecture posted to his YouTube channel that Congressional laws banning child labor are forbidden by the US Constitution.

Lee, a fierce advocate for the Tenth Amendment who replaced longtime Republican incumbent Bob Bennett in the Senate this month, argued that only states have the constitutional authority to create such laws.

"Congress decided it wanted to prohibit that practice, so it passed a law. No more child labor. The Supreme Court heard a challenge to that law, and the Supreme Court decided a case in 1918 called Hammer v. Dagenhardt," Lee said. "In that case, the Supreme Court acknowledged something very interesting -- that, as reprehensible as child labor is, and as much as it ought to be abandoned -- that's something that has to be done by state legislators, not by Members of Congress."

Lee's reasoning was that labor and manufacturing are "by their very nature, local activities" and not "interstate commercial transactions." He added: "This may sound harsh, but it was designed to be that way. It was designed to be a little bit harsh."

The key Congressional law that addresses child labor is the Fair Labor Standards Act of 1938, which placed a series of restrictions against the employment of people under 18 in the public and private sectors.

The Supreme Court unanimously upheld the law in the 1941 United States v. Darby Lumber decision, overturning Hammer, on the basis of the constitutional authority of Congress to regulate interstate commerce. It has hardly run into controversies since.

Lee said he was not opposed to laws regulating child labor, but merely insisted they be controlled by state governments, not Congress. The issue of states rights is particularly popular in Utah, widely known as America's most conservative state.

The following video was uploaded to YouTube by Sen. Mike Lee.

[Ed Anger]

Children would be advantageous in the picking of grapes. Better than Mexicans.

[MadImmortalMan]

This is two weeks early.

[Caliga]

Oh man, I was hoping this was gonna be about Rand Paul.

[DGuller]

Oh man, I was hoping this was gonna be about Rand Paul.

I was hoping it would be Rand Paul too.  The thought of there being more than one of those is distressing to me.

[stjaba]

If you follow that same line of prehistoric constitutional jurisprudence, you would invalidate the Congressional  partial birth abortion ban(which I bet Senator Lee supports) as abortion is a "purely local activity." I bet the Utah elected Senator Lee wouldn't agree w/ that.

Similarly, if you use old case law, that means that the right to bear arms doesn't apply to states because the first ten amendments do not apply to state laws (see Barron, 1833) as the Bill of Rights was intended to protect citizens against the federal government, not against state governments. The only clause of the constitution that could conceivably protect the right to bear arms, the 14th Amendment, doesn't apply to states either as the 14th Amendment was interpreted as only protecting sufficiently fundamental rights. The grand  jury indictment requirement,  12-person jury requirement , and privilege against self-incrimination were all originally deemed to be insufficiently fundamental to be protected via the 14th Amendment. It is folly to argue that the right to bear arms would be considered fundamental when those rights were not. Therefore, states(and their political subdivisions) can pass all the gun control laws they want.


(Interestingly, Justice Thomas made this exact argument in his McDonald v. Chicago concurrence(the gun control case) However, he felt that the right to bear arms should be protected through the Privileges or Immunities Clause, which is in another part of the 14th Amendment.)

[Admiral Yi]

Abortion right doesn't derive from the Commerce Clause.

First time I've ever heard that the Bill of Rights doesn't apply to state law.

[ulmont]

First time I've ever heard that the Bill of Rights doesn't apply to state law.

stjaba is correct - the Bill of Rights, which guarantees rights against the federal government, is only incorporated to apply to state laws on a case by case basis (which has damn near always incorporated a right to apply against the states).
See also: http://en.wikipedia.org/wiki/Selective_incorporation

Worth noting that the right to bear arms was only held to apply against the states last year.

[Admiral Yi]

only incorporated to apply to state laws on a case by case basis

Can you tell me what that means?

[stjaba]

Abortion right doesn't derive from the Commerce Clause.

First time I've ever heard that the Bill of Rights doesn't apply to state law.

I'm not talking about individual's right to abortion- I'm talking about Federal government's ability to regulate abortion. This is just like the Obamacare debate. If the Supreme Court invalidates the healthcare bill as not falling under the Federal Government's commerce clause powers, there is a decent argument that the ability to regulate abortion doesn't either.

[stjaba]

only incorporated to apply to state laws on a case by case basis

Can you tell me what that means?

In 1833, the Court ruled that the Bill of Rights doesn't apply to states. The reasoning was that the drafters were concerned about the federal government encroaching on rights, not state governments.

After the civil war, the 14th Amendment was passed, which includes the phrase: "nor shall any State deprive any person of life, liberty, or property, without due process of law." In the early 1900s, the argument was made that the word "liberty" meant certain rights included in the Bill of Rights. The Court generally rejected these arguments. However, in the 60s and the 70s, the Supreme Court revisited those arguments, and this time, found that rights found in the bill of rights were protected against states via incorporation of the liberty interest in the 14th Amendment. However, each case was decided on a "right by right" basis, since for instance someone complaining about the right against self incrimination wouldn't argue about the right to a jury trial. Eventually, nearly all the rights found in the Bill of Rights were found to be incorporated via the 14th Amendment. The 2nd Amendment was found to be incorporated last year. Some originalists/textualists, like Thomas, are uncomfortable with the notion of incorporation- hence, Thomas's concurrence in the gun case noted that he didn't buy the incorporation theory. Since the parties never made the argument, however, Thomas didn't let that influence his vote.

[Admiral Yi]

Well I'll be darned.  What a font of useful information y'all are.

[Neil]

That is rather interesting.  I remember talk to that effect last year when they incorporated the Second Amendment (an unmitigated disaster for the US), but it's nice to have the history explained.

[Slargos]

Yes, that a man should follow his convictions rather than what is politically expedient is an outrage. 

[DontSayBanana]

Yes, that a man should follow his convictions rather than what is politically expedient is an outrage. 

It's not a case of being politically expedient; the man's a moron who's 70 years behind on understanding of judicial activity in the matter.

Manufacture is not necessarily "by nature" an intrastate activity.  There are plenty of places that manufacture with no intention of retailing or even distributing their product at the place of manufacture.  That means the lines are blurred, and the Supreme Court stated, all the way back in 1937, that if there's doubt and it could possibly be intrastate or interstate, it's to be assumed to be interstate.  I don't see too much text on this, but I'm assuming they intended to avoid any ad hoc regulation schemes that fell under a grey area in the constitution.