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/#
QuoteGOP 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.
Children would be advantageous in the picking of grapes. Better than Mexicans.
This is two weeks early.
Oh man, I was hoping this was gonna be about Rand Paul. :(
Quote from: Caliga on March 17, 2011, 05:32:33 PM
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.
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.)
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.
Quote from: Admiral Yi on March 17, 2011, 06:15:29 PM
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.
Quote from: ulmont on March 17, 2011, 06:26:01 PM
only incorporated to apply to state laws on a case by case basis
Can you tell me what that means?
Quote from: Admiral Yi on March 17, 2011, 06:15:29 PM
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.
Quote from: Admiral Yi on March 17, 2011, 06:29:23 PM
Quote from: ulmont on March 17, 2011, 06:26:01 PM
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.
Well I'll be darned. What a font of useful information y'all are. :cheers:
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.
Yes, that a man should follow his convictions rather than what is politically expedient is an outrage. :mad:
Quote from: Slargos on March 17, 2011, 07:15:03 PM
Yes, that a man should follow his convictions rather than what is politically expedient is an outrage. :mad:
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.
Err, he is from Utah. :huh:
If you have retard states like Utah in your union, you reap what you sow. And most likely this will not damage him politically, because his voters are retards.
That's quite interesting. I had no idea "incorporation" existed.
Quote from: Grey Fox on March 18, 2011, 06:24:33 AM
That's quite interesting. I had no idea "incorporation" existed.
It's logical- some of the latter amendments are clearly intended to deal with the federal government, but contain phrasing that could be construed to include state governments as well- look at the 17th amendment and the 27th amendment. The former specifies federal congressmen, the latter is phrased in an ambiguous way that could cover state senators and representatives as well.
Quote from: Martinus on March 18, 2011, 02:36:38 AM
Err, he is from Utah. :huh:
If you have retard states like Utah in your union, you reap what you sow. And most likely this will not damage him politically, because his voters are retards.
At least they're looking into the important issues facing their state in this time of economic turmoil. Like becoming the first state to designate an official state gun.
http://www.reuters.com/article/2011/03/18/us-automatic-pistol-utah-idUSTRE72H08Z20110318
The notion that interstate commerce as used in Section 1 should be interpreted narrowly to include only the actual transport, transmission or sale of persons, property, or commodities across state boundaries and the instrumentalities for carrying that out is not in itself absurd. As a matter of legal precedent, it is a dead issue, however.
It does seem rather odd that of all the uses of the commerce power to single out, this guy chose to highlight child labor laws. Yes that was the issue in Hammer almost 100 years ago, but it was in part revulsion against Hammer that began to turn the tide against the the strict construal of the commerce clause.
Quote from: The Minsky Moment on March 18, 2011, 12:49:10 PM
It does seem rather odd that of all the uses of the commerce power to single out, this guy chose to highlight child labor laws.
I was thinking the same thing. With deft political instincts like that it is no wonder he got elected.
Quote from: Valmy on March 18, 2011, 12:55:00 PM
Quote from: The Minsky Moment on March 18, 2011, 12:49:10 PM
It does seem rather odd that of all the uses of the commerce power to single out, this guy chose to highlight child labor laws.
I was thinking the same thing. With deft political instincts like that it is no wonder he got elected.
I think this is the guy who unseated a long standing Republican Senator.
Quote from: Grey Fox on March 18, 2011, 06:24:33 AM
That's quite interesting. I had no idea "incorporation" existed.
You have a good excuse for not knowing this--you're not a US citizen or resident.
I'm shocked that Yi didn't know it, though--it's pretty basic constitutional law.
Quote from: 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.
Is the partial birth abortion ban justified as being covered by the interstate commerce clause? I don't think so. If it is, then it really shouldn't pass muster, IMO. Child labor laws (as part of labor laws in general) I'll accept as being justified under the interstate commerce clause, but not the partial birth abortion ban.
Quote from: dps on March 18, 2011, 01:31:53 PM
You have a good excuse for not knowing this--you're not a US citizen or resident.
While that's true. I have no idea if such thing exist in Canadian constitution law as I know even less about the Canadian constitution law.
Quote from: dps on March 18, 2011, 01:31:53 PM
I'm shocked that Yi didn't know it, though--it's pretty basic constitutional law.
Brown Wolf and I have probably taken roughly the same number of US constitutional law classes.
Quote from: dps on March 18, 2011, 01:31:53 PM
I'm shocked that Yi didn't know it, though--it's pretty basic constitutional law.
I had no idea about incorporation before I took Con Law last year. Since over half of all Americans have trouble naming a single member of the Supreme Court(http://public.findlaw.com/ussc/122005survey.html), I doubt most have any idea about incorporation.
Quote
Is the partial birth abortion ban justified as being covered by the interstate commerce clause? I don't think so. If it is, then it really shouldn't pass muster, IMO. Child labor laws (as part of labor laws in general) I'll accept as being justified under the interstate commerce clause, but not the partial birth abortion ban.
Legislation doesn't require a constitutional "hook" in the language of the bill, although I think this Republicans are trying to implement a rule that would require that. So there is no explicit constitutional justification in the legislation for the partial birth abortion ban. But good luck finding another constitutional clause besides the interstate commerce clause that would empower the federal government to ban partial birth abortion. Thomas's concurrence, which Scalia joined, in the partial birth abortion ban suggested unease with the legislation, for instance.
The interstate commerce clause is the hook for tons of federal legislation that has little to do with interstate commerce. For instance, civil rights legislation, oddly enough, is justified solely under the interstate commerce clause.* Lots of federal criminal law is justified under the interstate commerce clause as well- for instance, loan sharking laws. That's why laws like the law criminalizing the possession of a firearm by a convicted felon require showing that the firearm traveled in interstate commerce for conviction. The FBI actually has experts who specialize in tracking the manufacture of firearms and bullets so that they can testify at trial that the possessed firearm traveled through interstate commerce.
*In the Civil Rights Cases of the 1880s, the Supreme Court struck down federal anti-discrimination statutes ruling that the 14th Amendment did not apply to private actors. So, in the 1960s, when newly passed civil rights acts were being challenged, the Court justified it under the interstate commerce clause. One of the private parties challenging the law was a BBQ restaurant in Alabama. The court noted that the restaurant purchased food that moved through interstate commerce. Another plaintiff was a motel in Atlanta- the court noted that it served travelers who traveled from state to state.
In the 1990s, the Court actually did strike down two laws as not being within the interstate commerce power- one involving violence against women and another involving guns in schools. But more recently, the Court upheld a federal marijuana law under the interstate commerce clause. So, there's definitely a lot of interesting precedent at play for the Obamacare litigation.
Quote from: Grey Fox on March 18, 2011, 01:34:06 PM
Quote from: dps on March 18, 2011, 01:31:53 PM
You have a good excuse for not knowing this--you're not a US citizen or resident.
While that's true. I have no idea if such thing exist in Canadian constitution law as I know even less about the Canadian constitution law.
It does not. We only have one constitution, and it applies to both the provinces and the feds.
Quote from: stjaba on March 18, 2011, 06:25:45 PM
Quote from: dps on March 18, 2011, 01:31:53 PM
I'm shocked that Yi didn't know it, though--it's pretty basic constitutional law.
I had no idea about incorporation before I took Con Law last year. Since over half of all Americans have trouble naming a single member of the Supreme Court(http://public.findlaw.com/ussc/122005survey.html), I doubt most have any idea about incorporation.
I forget sometimes just how poorly educated many of my fellow citizens are. Generally, though, our posters here are better educated than the average (scary, isn't it?).
Quote
Quote
Is the partial birth abortion ban justified as being covered by the interstate commerce clause? I don't think so. If it is, then it really shouldn't pass muster, IMO. Child labor laws (as part of labor laws in general) I'll accept as being justified under the interstate commerce clause, but not the partial birth abortion ban.
Legislation doesn't require a constitutional "hook" in the language of the bill, although I think this Republicans are trying to implement a rule that would require that. So there is no explicit constitutional justification in the legislation for the partial birth abortion ban. But good luck finding another constitutional clause besides the interstate commerce clause that would empower the federal government to ban partial birth abortion. Scalia and Thomas have said as much.
I wasn't intending to suggest that there was anything in the legislation itself to justify if, but rather to how it is/was justified in discussions of the topic.
Quote from: dps on March 18, 2011, 06:58:51 PM
I wasn't intending to suggest that there was anything in the legislation itself to justify if, but rather to how it is/was justified in discussions of the topic.
As far as I know, It hasn't been discussed too much in the court system. The ban was never challenged for lack of Commerce Clause nexus. Thomas suggested in his concurrence that the parties should have taken that issue up implying he might think there was a lack of a nexus between the clause and the ban. In the majority opinion, the Court briefly noted that the Commerce Clause gave justification, and that the legislation involving safety.
QuoteThis is too exacting a standard to impose on the legislative power, exercised in this instance under the Commerce Clause, to regulate the medical profession. Considerations of marginal safety, including the balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends.