Docstoc

dagenhart.ds

Document Sample
dagenhart.ds Powered By Docstoc
					          Today’s Lecture:




  The Laissez Faire Regime, Part I




Session                      Topic(s)


 17
Notice to DocStoc Users:

These slides are from a lecture given by Dr. Sean Wilson, Esq., at
Wright State University. To learn more and/or to view the lecture, click
the following:
                       Plays a flash movie of the lecture segment for the
                       slides in question

                       Takes you to a course webpage, where you can
                       access more information (get a syllabus, etc.)

                           Learn more about the crazy
                           professor.


                           Takes you to a Table of Contents for this Lecture


       #6   (2)    Indicates slide topic number. (2) means directory b2. #6 means the subdirectory.
                   Hence, you can launch this topic via url: http://seanwilson.org/b2/6/index.html.
                   Each slide topic reveals its location in this way.



                  Launches the lecture clip for the next slide topic
Lecture Organization

 Last Time             This Time

  Roger Taney          Judicial Regimes

   NY v. Miln          Industrialization

   Dormant               E.C. Knight
Commerce Clause
                         Hammer v.
                         Dagenhart
              Intro to “judicial regimes”


Basic Point

   -- Each political generation that triumphs in the policy
   branches leaves (or births) a judicial regime

    Federalists                  Marshall

    Jeffersonians/
                                   Taney
     Jacksonians
              Intro to “judicial regimes”


Context

  -- Americans created a system where they run to the Courts
  to tell them answers to certain questions
  (parliament doesn’t tell you these answers, the lawyers and
  the Courts do)
  Over time, what will develop are competing LEGAL
  PRODUCTS (or philosophies) about how to engage in this
  behavior
  Legal approach X; Legal approach Y.
  (cf today: Scalia versus Breyer)
  Originalists v. “living constitutionalists”
             Intro to “judicial regimes”


Two potential problems

   Lag Effect   -- Justices from the old political generation
                stay on through the ascendancy of the new
                generation


   Is Judging    -- One of the reasons the lawyers and judges
    Special?     had the power to say what the law is, is
                 because it was thought their orthodoxy (craft)
                 made their decision making distinct.
               Judicial Power, Wisdom ,
                 Tyranny and Politics

Your course paper

  Your Course Paper:      Closer to the fire

  1. If the Court was only a department,
  would it have judicial review?

  2. If the Court did not have the final say,
  would any of the cases we study right
  now be different? keep a score card
                                                        Closer to the fire



            PRESIDENT        SENATE                     HOUSE



 Procedure:
                                                         JUDICIARY
 1. Constitutional decisions could
 be overturned by Congress

 2. Term limits and legislative
 oversight
11/4/2010                Copyright, Sean Wilson. 2007                        8
                 Conceptualizing Taney’s Approach



      Federal Government                                     States




       Everything given by                             Everything NOT
       the Constitution                                given to Feds in
                                                       the Constitution
                                                      the natural right to
                                                      police for health and
                                                      safety
                                                            Regulating
                                                            commerce when
                                                            Big Brother is
                                                            not
11/4/2010                    Copyright, Sean Wilson. 2007                     9
Exclusivity dies

    -- After Taney, no longer is there the idea that if the federal
    government had a given power, X, that the states could not
    also have that power simultaneously, so long as it did not
    conflict with a federal desire
    (e.g., taxation, bankruptcy).
    (later on – outlawing race discrimination)


     “Dormant” Commerce Power
                 Laissez Faire Era


Political Background

   -- Change in American culture from agrarian to industrial
   economy
       “Horse and Buggy” days are gone
       Industrial Capitalism is here.
                    Laissez Faire Era
                                                             # 116



Large Scale Production

      -- From 1863-1899, index of manufacturing production rose
      by more than 700 percent
      • Andrew Carnegie (steel), John D. Rockefeller (oil)
      “Robber Barons”




11/4/2010                  Copyright, Sean Wilson. 2007      12
                    Laissez Faire Era


 New Economic Goliaths

      -- Mergers, Trusts, Monopolies, Oligopolies


  Massive Mergers --

   Under the McKinley administration, there were massive
  mergers going on, so that companies were growing into large
  trusts and monopolies. Two thirds of the largest 75 industrial
  companies in the united states had not existed just a few
  years earlier. (when Teddy Roosevelt is in office, 1901)



11/4/2010                 Copyright, Sean Wilson. 2007             13
                    Laissez Faire Era


 New Economic Goliaths

      -- New “economic Godzillas in an agrarian legal order”
            Fundamentally-important point (explain)



Woodrow Wilson --He said that "Jefferson's view of limited
government belonged to an age which was without railways and
telegraph lines." He came to realize that government must change
and adapt with the times of this new industrial era, if it was to
perform its function.

11/4/2010                 Copyright, Sean Wilson. 2007         14
                    Laissez Faire Era
                                                              # 118


 Capitalism gets sick?
-- New phenomenon: the roller coaster ride
-- Left unabated and unchecked, the new industrial capitalism
seemed to have fits of boom and bust
      -- depression in 1870s and 1890s
      (1890’s would have been America’s “great depression” if it
      would not have been for the Great Depression.




11/4/2010                 Copyright, Sean Wilson. 2007        15
                  Laissez Faire Era


 Should there be rules for capitalism?

-- Certain kinds of abuses would occur
-- worker injuries, child labor, unsafe products
-- the Upton Sinclair book

Famous book written by Upton Sinclair, called the “The
Jungle,” which chronicled how the manufacturers of beef --
specifically, sausages -- had worked on conveyor belts, and
rats would jump up on the conveyor belts and be chopped up
and put into the sausages. The manufactures of the
sausages didn’t care
11/4/2010                Copyright, Sean Wilson. 2007     16
                    Social Transformation


 Labor Movement

-- Labor unions form
-- Terrible strikes in the late 1800s (Eugene debs)
      • violence, death
-- people are demanding labor reform




11/4/2010                 Copyright, Sean Wilson. 2007   17
                  Social Transformation                    # 119



Transformation in the organization of political ideology

-- something fascinating results
-- how political ideology is organized, changes




11/4/2010                Copyright, Sean Wilson. 2007      18
                                               Farmers
                                               Steelworkers
                                               Coal Miners
                                               etc



   Plantation                                Labor
                                     The forces of
   Hegemony                          capital




11/4/2010       Copyright, Sean Wilson. 2007                  19
                              A new rationalization for the
                              power center!


                               No more states rights!
       Laissez
       Plantation
       Hegemony
       Faire




11/4/2010           Copyright, Sean Wilson. 2007              20
       Laissez
                                                Progressivism
       Faire




11/4/2010        Copyright, Sean Wilson. 2007                   21
         E.C. Knight


Facts:




                            Question:
                       What are the Facts of
                            this case?
                       E.C. Knight


Facts:

  -- Congress passed the Sherman Anti-Trust Act in 1890.
  -- Concerned about large conglomerations and trusts
  -- American Sugar Refining Company
         • purchased 4 sugar refineries in PA
         • controlled over 98 percent of the sugar-refining
         business in the United States.
         • E.C. Knight was one of the refineries
                    E.C. Knight


Facts:

   -- Congress passed the Sherman Anti-Trust Act in 1890.
   -- Concerned about large conglomerations and trusts
   -- American Sugar Refining Company
      • purchased 4 sugar refineries in PA
Outlawed --
        • controlled over 98 percent of the sugar-refining
        business in contract, combination...or conspiracy, in
It outlawed "everythe United States.
                                              Question:
restraint of trade" or interstate commerce, and it declared
        • E.C. Knight was one any refineries
every attempt to monopolize of thepart of trade the commerce
                                        What are or facts of
to be illegal                                 this case?
                    E.C. Knight


Facts:

   -- Congress passed the Sherman Anti-Trust Act in 1890.
   -- Concerned about large conglomerations and trusts
   -- American Sugar Refining Company
      • purchased 4 sugar refineries in PA
Outlawed --
        • controlled over 98 percent of the sugar-refining
                                          Question:
        business in contract, combination...or conspiracy, in
It outlawed "everythe United States.
                                               Question:
                                 What does the rule declared
restraint of trade" or interstate commerce, and it of law
        • E.C. Knight was one any refineries
every attempt to monopolize of thepartabout this? Can of
                                          of trade or facts
                                   sayWhat are the commerce
to be illegal                        Congress do this?
                                              this case?
Everyone
 Votes!
           1. The Constitution allows     24
              the Feds to outlaw
              monopolies in capitalism
                                           4
           2. The Constitution does not
              allow the feds to outlaw
              monopolies in capitalism
          E.C. Knight


Ruling:




                              Question:
                        What is the holding in
                             the case?
 Q-Live
 What does the Court do?
Did the follow the law or
   create a new law
                            0
Did they violate Gibbons?
                            0
  Is it good or bad law?
                        E.C. Knight


Ruling:

   -- Sherman Anti-Trust Act is constitutional, but
   -- Manufacturing is different from selling
    “Dinner Logic”

     “You can’t touch the cooking while it is in the oven”
          “Before it comes out of the oven, it isn’t yet “dinner”
          (works the same for “commerce”)
                     E.C. Knight


Basic Legal Rules:

   -- #1: Manufacturing is local
   -- #2: Can’t regulate commerce “indirectly”
   (let’s conceptualize this)
                                      John Marshall

                                1. purely local
                                Now we add
                                something New:
                                2. if it NEVER leaves
                                 1. purely local
                                 2. BEFORE it leaves




                    Now Uncle
                    Sam Can’t              “Dinner logic?”
                    regulate it
                                            “Abortion Logic?”
  Changes (narrows) Marshall’s
  original idea
11/4/2010            Copyright, Sean Wilson. 2007               31
        Question:                      John Marshall
                                             Question:
Why am I showing this to                   What is
                                 1. purely local the political
                                 Now we add
you? Of what relevance                     significance
                                 something New: of this
                                 2. if it NEVER leaves
  is this to our course?                        decision?
Regime politics and              1. purely local
constitutionalism                                  Question:
                                 2. BEFORE it leaves
                                               What else can’t
                                           Congress do under this
                                                   decision?
                                       Coal mining? Steel mills? All
                     Now Uncle         the big industrial factories?
                     Sam Can’t
                     regulate it

   Changes (narrows) Marshall’s
   original idea
 11/4/2010            Copyright, Sean Wilson. 2007                  32

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:62
posted:9/27/2010
language:English
pages:32