Investigating the Tea Party’s America: CAP Picks Up Our Lochner Analysis

Earlier this week, drawing on a column that explained the roots of their legal reasoning (such as it is), we analyzed what the tea party actually means when they invoke “economic freedom” and curse Progressive Era-regulations. It’s not a pretty sight. From our post:

When Lochner [a Supreme Court decision invalidating workplace safety regulations] died, it died for a reason. For several, in fact. First, because we realized that “economic freedom” — true laissez faire – means freedom for the rich, and crippling abuse for the poor. Left to their own devices, the robber barons of the late nineteenth and early twentieth centuries proved themselves singularly capable of becoming true despots in a way that the federal government never has. Without government intervention, these figures could leverage need and a lack of viable alternatives to create and maintain a permanent underclass, doomed to work late and die young. The law should be addressed to removing those barriers, notstrengthening them. [. . . .]

This is the world to which George Will — and all Republican candidates who speak so boldly about “economic freedom” — yearn to return. A world where children work because they legallycan and practically must, and where having a job matters more than not dying from (or at) it.

And now, lest you think I’m making this all up, per a Center for American Progress Report, extrapolating a legislative and legal agenda from the tea party’s increasingly extremist economic theology (pdf),

Nearly 100 years ago, the Supreme Court declared federal child labor laws unconstitutional in a case called Hammer v. Dagenhart. Twenty-two years later, the Court recognized that Hammer’s holding was “novel when made and unsupported by any provision of the Constitution,” and unanimously overruled this erroneous decision. Sen. [Mike] Lee [R-UT], however, believes that, while Hammer might “sound harsh,” the Constitution “was designed to be that way. It was designed to be a little bit harsh,” and thus we should return to the world where federal child labor laws are unconstitutional.

Perhaps tea party theology sounds fun at the abstract level. Who doesn’t like limited government? What could possibly be more American? But consider what happens when you inflect that theory onto the real world — and consider also that we’ve tried this all before, with unhappy results.



  1. Not one of my greatest, but then again, it wasn’t one of the Supreme Court’s greatest, either.

    To take on pure state power, though ind’rect
    As Congress feigns commerce to inspect
    We find labor laws
    Illegal because
    If upheld, they’d leave our whole system wreck’d.
    — Hammer v. Dagenhart, 247 U.S. 251 (1918)

  2. “..tea party theology..”

    Interesting choice of words. You just published a post which complained about the misuse of the term socialist for but here you use a religious term to describe political policy. It’s not clear to me that [you] actually know better, although [you] certainly should.

  3. Oh it was quite deliberate, I assure you.

  4. So then you REALLY can’t complain about Perry.

  5. You’re both deliberately manipulating your description of policy to create fear/hate/etc in your reader. Two sides of the same coin.

  6. Only I’m not running for President, am I?

    And I’m not going for fear or hate. I’m trying to communicate the unreasoned orthodoxy behind tea party economics. Perry is going for both.

    1. The difference isn’t that you aren’t running for president. The difference is that Perry, Lee, teabaggers in general believe their political opinions are dictated by God. How is that not a theology?

  7. So you have no obligations? What if you were running for city council? Obligations there? What about talking to your children? Where is the line Ames.

    I remember you talking about dog-whistle racism back in 2008 and claiming anyone that called Obama a radical was secretly slinging racist terminology. Did that include bloggers?

    If you want to communicate something then use the word ‘ideology’ which is more accurate and not filled with hidden meaning.

  8. Consequentialism has no place in Constitutional law.

%d bloggers like this: