Thursday September 08, 2011
LIKE NOBLESSE OBLIGE, BUT WITHOUT THE GENEROSITY. George Will no longer cares whether anyone is listening except other wingnuts, so he celebrates aloud at the Washington Post that the more vicious sort of glibertarians are into "a robust new defense of a 1905 Supreme Court decision that liberals have long reviled," the Lochner decision:
An 1895 New York law limited bakery employees to working 10 hours a day and 60 hours a week. Ostensibly, this was health and safety legislation; actually, it was rent-seeking by large, unionized bakeries and the unions. Corporate bakeries supported the legislation, which burdened their small, family-owned competitors. The bakers union hoped to suppress the small, non-unionized bakeries that depended on flexible work schedules.
Lochner put a stop to that, and to many other worker-protection laws, which is why Will has a boner for it.
Lochnerism suffered many reversals during the New Deal era, which Will mourns, and he hopes we will join him in cheering its revival and the demise of "progressivism’s statism and paternalism."
But the average person reading Will's column probably won't see it that way; he'll probably see "10 hours a day, 60 hours a week," and recognize that it's just the sort of thing bosses love, because it can be used to whip their workers unto the ever-accelerating productivity on which 21st-Century profit margins depend.
Will's readers may also intuit that Lochnerism will be the airy, "freedom"-tinted justification they will hear when they protest being made to work 60 hours or more (or having their hours cut till they can't live on what they pay), or forced to sleep in tents in some remote location, or to buy certain needed items only from the company store, or whatever other outrages America's coming neo-feudal age will force upon them. Because in a depression and an era of eroding entitlements, "freedom of contract" won't mean much more than the freedom to starve.
Lochner cheerleader David Bernstein is already giving such justifications:
Of course, the Supreme Court did invalidate federal laws attempting to adopt national child labor rules, though these cases were decided on federalism grounds, not freedom of contract grounds. One could almost forgive various academics for confusing federalism concerns with liberty of contract concerns...
You can just hear the pedantic sneer: Pish, little man, you're confusing Tweedledeeism with Tweedledumism! But then what do you know of the law? Now run along and work until you collapse into the gears of your machine, secure in the knowledge that legal scholars have vetted your misery.
UPDATE. From comments, gil mann: "I keep waiting for the Washington Post to change the name of that section from 'Opinions' to 'Modest Proposals.'"