Patrick Bohan for Congress: Right to Work

Cases such as Wickard v. Filburn, Nebbia v. New York, and Carolene Products v. United States are classic examples of how the government used fear created from a national emergency, the Great Depression, to increase its power by changing the meaning of the commerce clause in the Constitution to mitigate the right to work. The Founders definition of commerce was trade. Today, however, commerce covers everything that is economic in nature including manufacturing and labor laws. What’s more troubling is that these awful decisions are still valid laws and defended by most law scholars. In Wickard, the Court held the federal government can dictate how much wheat a farmer can produce and growing any excess to feed his family and livestock violated the Agriculture Adjustment Act. In Nebbia, the Court caved to the powerful dairy lobby and jailed a store owner for selling milk for under 9 cents a quart. During the Great Depression people were desperate and starving but the objective of the New York law, upheld in Nebbia, was to help the dairy lobby fix milk prices to inflate their profits. In Carolene Products, filled milk was banned from interstate commerce because it was sold for 3 cents less a quart than milk. Again, the dairy lobby won at the expense of the starving public and small businesses. As people lived in fear wondering how they may survive without work and food during the Great Depression, politicians used it as an excuse to expand the scope and power of the federal government to protect the affluent at the expense of the poor.

Consider another example, the 1873 Slaughterhouse Cases. In this case, the Supreme Court held that the city of New Orleans could produce a law that would monopolize the butcher industry so they could prevent cases of cholera. That sounds reasonable, the Court wanted to protect the safety and wellbeing of citizens from the unhealthy butcher practices of dumping waste into the drinking water. But does this law really choose the least evasive method to achieve its goal of public safety? No, the city did not have to eliminate the right of butchers to work a lawful profession. It makes no sense to monopolize the butcher profession. Instead, a law that outlined proper methods for disposing of waste would make more sense than removing the livelihood of hundreds of people. Again, a local emergency allowed the local government to use fear to garner more power by allowing them to needlessly reduce the rights of individuals and workers. The Slaughterhouse Cases are a classic example of fear leading to irrational problem solving. Well, some may argue so what - this case is 150 years old. True, but the Slaughterhouse Cases are still good law because they have never been overruled. What was even more irreprehensible was the decision in this case redacted the privileges and immunities clause from the Fourteenth Amendment passed just 5 years earlier. Think about that, over 600,000 Americans died in the Civil War to garner passage of the Thirteenth, Fourteenth, and Fifteenth Amendments just to have one of the most powerful provisions, that protects human rights from state government infringement, redacted 5 years later!