It is real, and it is dangerous
When it comes to matters of the law, I confess to being a rank amateur. Even in matters of general philosophy and debate, I am but a novice. But it does not take a legal whiz or a philosophical genius to recognize trends which are dangerous to a free society.
A clever debater or pundit has many tools in his or her repertoire. In several posts and the corresponding comment sections, Ed Brayton has argued that the term “judicial activism” is used very loosely by rank-and-file conservatives and that even a serious analysis fails to find an objective measure by which to distinguish it. Therefore, Ed seems to imply that there is no judicial activism, or that any cases are isolated and most are overturned on appeal. “These aren’t the droids you’re looking for…”
But conservatives sense, almost instincively, that something is afoot. When judges more and more often invoke “evolving standards” and supposed “national consensus” in their rulings, there is a distinct odor of personal philosophy emanating from courtrooms around the country. Thomas Sowell addresses this issue better than I can in a recent series of columns (part 1, part 2, part 3). Here’s an excerpt:
One of the big confusions in the impending Senate fight over the confirmation of judicial nominees is that this is an issue about “liberal” judges versus “conservative” judges. The vastly more important issue is whether people who go into court should expect their cases to be decided on the basis of the law or on the basis of the particular judge’s own philosophy.
The more we can keep judges’ philosophy out of our legal system, the more we approach the ideal of “a government of laws and not of men.” But we have been moving in the opposite direction for too long already and recent court decisions, including those of the Supreme Court, show a continuing trend toward judicial activism, relying on notions outside the law and even outside the country.
As Professor Bainbridge has said, it’s about the culture wars. It’s not at all surprising that liberals either deny that judicial activism exists or that it is a problem. Sowell agrees, and offers a warning:
Liberals have rooted for judicial activism because this activism has favored liberal causes and liberal views on such issues as abortion, the death penalty, gay marriage, and racial quotas. But activism can be used by any judge for any purpose.
Indeed. While the courts are a vital instrument for the goal of protecting minorities against the will and whim of majorities, having them settle cultural issues is dangerous. When it comes to areas other than fundamental rights, would it not be better to lean toward leaving these issues in the hands of the elected branches of government?
Postscript: A longer essay by Sowell appears to address the definition of “judicial activism” in greater detail than the above-linked columns. I haven’t read the entire essay yet, but I intend to.
21 Responses to “It is real, and it is dangerous”
If we deny judges the power of “judicial activism,” we’ll shift the power of a simple congressional majority from “damn, the court says we can’t do that unless we amend the constitution” to “haha, we’ve got a simple majority, we can do whatever we want!” If any “activism” is dangerous, it’s the latter, not the former, in my opinion.
“Judicial activism” is just a judge telling a simple majority of legislators, “no, you can’t do that. It’s unconstitutional.” That’s it. I’m not sure what’s so “dangerous” about that.
If the judge is blatantly, unbelievably wrong, the simple majority should be able to garner enough support to amend the constitution to say exactly what the simple majority claims it says anyway.
Presuming judicial activism can be isolated from ideology, and separated from the act of adjudication, why is judicial activism any more “dangerous” than the other gray, muddled points of power-checking in our system?
The only “danger” posed by this act of telling this simple majority “no” is that that simple majority can’t pass the law they wanna pass, unless they get enough support for their position that they can amend the constitution.
That’s a check on legislative power, not judicial power run amuck, in my opinion.
Eric Seymour wrote:
I am an amateur myself, having never been to law school. So, I might add, is Thomas Sowell, who is an economist and not a legal scholar. But I am happy to rely upon the strength of my arguments to make the case for my position.
I haven’t actually implied that there is no judicial activism. What I’ve implied is that no one has yet come up with a consistent definition of it that is applicable in the real world. And this post gets us no closer to such a definition. Sowell’s essay, if anything, takes us further from it. But the implication here is that I’m engaging in some sort of debater’s strategy or “Jedi mind trick” to cover up the lack of support for my argument. I would suggest that the opposite is true. My position is in fact easily shown to be wrong. All one has to do is provide a coherent and consistent definition of judicial activism. No one has yet done that.
The problem with defining “judicial activism” is that there is no middle ground. It can only be defined either too broadly, as when it is used to mean “courts overruling legislative acts”, too broad because everyone has some legislative acts that they believe are correctly overturned by the courts. Or it can be defined very narrowly but unprovably, as when it is defined as “when a judge uses his personal opinions to reach a desired result.” When you try and apply this to the real world, you find out just how inadequate it is. Was Griswold v. Connecticut an example of “judicial activism”, as Bork claims it was? Nowhere in the opinion does Justice Douglas refer to his personal opinions at all, and the decision is based upon the same type of reasoning from general principles that is present in dozens of other cases that not even Bork thinks are controversial. He cites case after case that not only supports this course of reasoning, but also supports the specific application of it in terms of establishing a general right to privacy. If this is a case of “judicial activism”, as so many conservatives claim, there is not a shred of evidence for that argument. And the fact that they “sense, almost instinctively” that it just must be activist only supports my contention that what is really going on here is the ritual attachment of a meaningless phrase to any ruling that they disagree with.
As though conservatives were not engaged in “personal philosophy”? This is the real problem I have with the Borks and Scalias (and Sowells) of the world – they really do pretend that their conception of “originalism” is a procedural technique, like a mathematical formula, that if applied correctly leads inevitably to the right result without any reference to ideology or desired outcomes. But they are wrong in both premise and conclusion: they do engage in “personal philosophy” because their legal theories are ideological, and if one applies the various standards that they put forth one often ends up with quite heinous results, which they then must tie themselves into all sorts of intellectual knots to get around (if you don’t believe me, see Bork’s attempt to argue that Dred Scott was not an originalist ruling). The only “debater’s trick” at use here is simple projection – point to your opponent and accuse him of engaging in ideologically-driven conclusions as though you yourself were a vulcan, logically applying a formula to reach the Truth regardless of where it leads.
Sowell engages in this in a most obvious fashion when he argues that we must keep “judges’ philosophy” out of our legal system, as though originalism in its many forms was not a “judge’s philosophy” itself (when Larry Solum argues for a strictly non-ideological judiciary, as he does with his conception of neoformalism, I believe he is sincere because Solum is not an ideologue; when Sowell, who absolutely is an ideologue, makes that argument it strikes me as a pot and kettle situation). And when he argues that liberals allegedly support activism because it leads to results they like, he leaves out the fact that the phrase “judicial activism” was coined in the 1930s by liberals who were upset by conservative courts striking down the laws and policies of FDR. And that is precisely the point I have been making all along, that “judicial activism” is little more than a catchphrase that means “judges doing things I disagree with.” That is true of conservatives today just as it was true of liberals 70 years ago.
That gets us into the entire issue of what is a “fundamental” right and what is not, which I think is irrelevant. I think Justice Kennedy was right to go outside of the traditional fundamental rights v. mere liberty interests standard and simply posit that laws which violate liberty must be justified by something more concrete than the whim of a legislative majority. If you are willing to admit that the courts and their ability to strike down oppressive legislation are a “vital instrument” for protecting minorities against the whim of the majority, how do you propose determining when they should and should not do so? You’ve said that penumbral reasoning is out, then you said it’s not totally out it’s just sometimes out, but without any criteria to determine when it’s okay and when it’s not. We’ve already established and agreed that the commonly heard argument that if it isn’t explicitly listed as a right in the constitution it can be violated at the legislature’s whim is absolutely false and contrary to the meaning of the 9th amendment. So what are we left with? I would suggest that we are left with Randy Barnett’s presumption of liberty. Put the burden of proof on the government to show that there is a clear and compelling interest (not merely a fuzzy “rational basis”, which in reality means any excuse they see fit to offer) to justify using the coercive power of the state to prohibit individual actions in every particular case in which this is attempted.
The long Sowell essay that you link to does little to help the case for a coherent and consistent definition of judicial activism. If anything, it makes my case stronger. In discussing the alleged objectivity of “originalism”, he contradicts himself over and over, jumping from “original intent” originalism to “original meaning” originalism almost randomly. And the Bainbridge essay that you link to contains an almost startling admission of what is really going on here. First he quotes Randy Barnett as saying this:
And then he responds with this astonishing statement:
Notice first the incoherency of the definition of conservativism that Bainbridge offers. How on earth can one argue that the “domestic functions of government” should be “strictly limited” while simultaneously arguing for governmental authority to use the police power to throw people in prison for violating the “moral precepts of Christianity”? And notice second the fact that he is essentially giving up the game here in admitting that any legal theory which reaches the result he disapproves of on moral grounds must be wrong. Any theory that could possibly justify Roe v. Wade simply must be wrong, which is why so many pro-life people, rather than attacking the application of a right to privacy (which I think is tenuous at best in the case of abortion), attack the notion that we have a right to privacy at all and the clearly valid penumbral reasoning that led to it.
Anyway, on the general issue of whether judicial activism is a consistent and coherent notion, all one has to do to prove me wrong is to provide such a definition and apply it consistently to real world cases. Eric has not done so, but given that he has no background in law that is hardly surprising nor is it a mark against him. But neither has Sowell, or Scalia, or Bork, or anyone else who tosses the phrase around as though it really means something. And vague references to one’s “instinctive sense” of what it means rather than an objective and applicable definition only make my argument that much stronger.
Griswold? A couple of law school professors hoodwink the SC with a put up job. Mapes v Ohio a similar put up job. Everson, a bunch of Masons/KKK types enshrining slogans. How about this for defining what you say has not been defined? “I’ll know it when I see it”. That quote from an un named jurist might not apply to you, e.g. you might not know it when you view it.
Good writing, however, on your part. I will look for such a definition or something close to it. Perhap’s Bork’s latest piece in National Review?
Too, Ed, it might be wise for those of us who are in the amateur ranks to insist of you ahead of time just who you would accept as an authority for what you are asking to be defined. Would you accept John Marshall? Would you accept Taney, Bork, Holmes, Sutherland, Mussmanno, Tribe, or would the sole authority acceptable, perhaps, be yourself?
Anonymous wrote:
You seem to be laboring under the bizarre misconception that these are actually arguments against the validity of those cases.
The “unnamed jurist” was Potter Stewart. It was silly when he said it and it’s even sillier in this context. It only proves my point: you’ll “know it when you see it” because it will only apply when you disagree with the outcome.
I’m not the least bit interested in an argument from authority. I’m interested in a consistent and coherent definition of the phrase “judicial activism”. If any of the above, or anyone else for that matter, will offer one I will gladly look at it. But don’t bother looking for one from Tribe, as he is on record as saying that the phrase is meaningless as well. That any of those people, of whatever authority, might offer a definition that they think is coherent and consistent is not proof that it actually is.
Ed, don’t waste your brain arguing with idiotic arguments from anon/leon. You’re doing a really terrific job here, but even with your copious amount of intellectual energy, you should probably follow some sort of cost/benefit approach….
I mean, I do believe that on the extremely rare occasion that a halfway decent argument comes out of anon/leon, that then it’s a good idea to throw him a little biscuit by responding to his errors. But these last couple of comments of his fail to cross even the most minimal threshhold of argumentative coherence.
I think Justice Kennedy was right to go outside of the traditional fundamental rights v. mere liberty interests standard and simply posit that laws which violate liberty must be justified by something more concrete than the whim of a legislative majority.
I think it’s vitally important not to diminish or discount the importance of the “whim of a legislative majority.” That mere majority is the foundational building blocks of our laws and legal system. It should be given enormous weight, and even when liberty is restricted, deference should be given to this so-called “whim.” The legislative majority can sometimes be ignored, but the hurdles to overcome in ignoring it are huge, and justifiably so.
Having established that the law correctly (in my mind and according Court precedent) regards the legsilative majority with extreme respect and deference, you seem to be arguing that “laws which violate liberty” should require more. In many cases they do, but I sense a bit too much universalism from you here. To use your own retort, the problem with defining “liberty” is that there is no middle ground. It can only be defined either too broadly, as when it is used to mean any freedom, too broad because everyone has some legislative acts that they believe are infringements upong liberty. Or it can be defined very narrowly but unprovably. What is liberty? Perhaps more important, who gets to define it? If not the “whim” of the legislative majority, then who? The “whim” of three or four justices appointed under the “whim” of the executive branch? Who gets to define this term, and what that definition is, seems crucial.
(And that criticism is independent of the larger and more important one which questions why more is in fact needed. I think the traditional fundamental rights v. mere liberty interests standard is faulty, but superior to the one you seem to endorse here.)
There is wide difference of opinion among Constitutional lawyers and non-lawyer experts as to the meaning of “right to bear arms.” However, if a state legislature passed a law banning the sale of all handguns, I doubt that conservatives who oppose judicial activism would give an iota of benefit of respect and deference to the legislature and would demand an overturning of such law.
It also seems to me that conservative judicial activists have rendered the Constitutional provision that only Congress can declare war to be absolutely meaningless.
My point isn’t that judicial activism isn’t real or that it doesn’t pose a threat, just that it is not a purely ideological matter. (A lot of conservatives support a very liberal rendering of the “taking” clause while I tend to favor a much more narrow view. Aren’t those conservatives calling for judicial activism by broadening the meaning of “taking”?)
My point isn’t that judicial activism isn’t real or that it doesn’t pose a threat, just that it is not a purely ideological matter.
Whenever I’m put in the position of showing that judicial activism is real, my default example is the era of economic substantive due process. A group of strongly conservative Supreme Court justices use a very loose reading of the Due Process Clause to suddenly strike down a bunch of laws they disagreed with, and which hadn’t really been Constitutional issues previously.
I’ve heard many an argument that minimum wage laws are poor legislation, but I don’t think I’ve ever heard a serious modern argument that they’re unconstitutional. Those arguments are pretty much limited to casebooks.
This has led me to believe that the strongest examples of judicial activism are probably best recognized in retrospect. If a judicial theory has real legal legs to stand on, then it’ll persist in some form. But if it’s rooted primarily in the judges’ own biases, then it’ll fade away with time.
And so you don’t hear a lot of buzz about a constitutional right to contract anymore. Virtually no one talks of constitutional ‘penumbras’ with a straight face. And I think it’s fairly well agreed that various 19th century opinions can be chalked up to the racism of their authors.
The other thing to remember about judicial activism is that it is almost never seen in a pure form. Most opinions probably have a hint of personal bias to them, but it’s when the ratio between law and personal leanings gets out of whack that people start crying “Activism!” No respectable judge is going to write a decision saying “Screw precendent; here’s what I think the law oughta be,” without having something, *anything*, to hang his reasoning on. He’d be foolish to write a decision with no legal merit whatsoever. I think a heavy reliance on international law, or on the concepts of “justice” or “fairness,” combined with a lack of cited applicable precedent are strong indicators that the judge is looking for something to prop up his personal opinion.
Loren wrote: I’ve heard many an argument that minimum wage laws are poor legislation, but I don’t think I’ve ever heard a serious modern argument that they’re unconstitutional.
Depends what you would accept as a serious argument, but I’m serious about what follows. If I’m willing to work for less than the minimum wage, the government shouldn’t prevent me from doing so. I think I have an inalienable right to work for whaterever compensation my labor can bring. Let’s call that the natural rights, pro-liberty, 9th Amendment argument. Then let’s throw in a 10th amendment arguement. The federal government has no enurmerated power to fix the price of labor or anything else. And maybe we can throw in a 5th amendment argument too. The government wants to have a minimum wage as a matter of “national policy.” So it’s a “taking.” They’ve denied me a job for the sake of their policy. Okay, maybe that last one is a little weak. But maybe not. And what do we stack against all of this? A compelling state interest in having an extra-constitutional minimum wage? Well, I don’t buy all that compelling state interst crap. If an interest is really that compelling they ought to amend the constitution to create the power, like they did with prohibition and the income tax. I think the shoe is rather on the other foot. There is no serious argument that minimum wage laws are constitutional. Okay, now I’m waiting with boredom to hear some argument about the commerce clause, but I won’t take it seriously.
Volokh addresses some of these points. Other points would include that lawyers are not the only ones with standing to have a reasoned opinion on justice as sought in courts. Since lawyers only practice law and put forth their reasoned opinions as to what they might have found it stands to reason that their work product is contestable on grounds of reason. Historians, in particular often expose the pretensions of the legal profession-as in Everson and many others.
Josh wrote:
I really do disagree with this. The foundational building block of our system is the idea that we have unalienable rights that may not be taken away regardless of how large a majority believes they should be. In a battle between democracy and liberty, liberty should win unless there is a very compelling interest in the other direction. The entire purpose of the bill of rights was to protect liberty from democracy, so why would we think that great deference should be given to majoritarianism when the result is a violation of liberty?
I think the term has essentially been defined for us by the founders themselves, in principle if not always in practice (bearing in mind, of course, that while they spoke boldly of principles they still operated in the real world and were forced by necessity to make compromises on those principles). I think it can be found in the philosophy of natural rights that serves as the basis for the Declaration, for instance, and best articulated by the author of that document. The quote that I offered from Jefferson the other day, I think, both defines the limits of liberty and speaks against the notion that we must give deference to majoritarian rules which violate liberty:
Notice that Jefferson attempts to make no distinction here between different types of rights, fundamental or non-fundamental for instance. He simply declares that any law which violates liberty, as he defines it above, is tyranny and should be rejected. I think that this is the only reasonable place to draw the line between what the majority may do and what it may not do. It’s the line that the founders endorsed in a hundred different statements about the dangers of majoritarian tyranny. And while there may be some troubling questions on the fringes of how to apply that principle, such as speed limits or drunk driving laws (which I have no problem with, of course), that doesn’t invalidate the principle.
Bear in mind that I am not arguing for some anarchist notion of total freedom. The state may still impose laws which violate liberty, but they must show a compelling interest in doing so. Yes, that can be difficult and subject to differing interpretations, but that is true of any principle or standard anyone wants to declare. And it is far better, I think, to set the presumption against government action and in favor of the individual. It’s the only way to restrain the government from going too far, as they so often have. Randy Barnett rightly points out that if we were to accept the idea that a given act may be prohibited, absent any harm to others, merely because a majority at any given time deems it to be immoral, there simply are no longer any limits on what the government may do to us. Our liberty is forever at the whim of the subjective opinion of 51% of the population, and that is precisely what the bill of rights was written to protect us against.
Ed wrote:
It’s a giant balancing test. There will always be cases where liberty wins out, and cases where the majority must triumph. How to balance them becomes the challenge. Saying the “Bill of Rights” must always triumph is different from saying “liberty” will. One carries the force of a strong majority, the other is simply the interpretation of a select few.
I just don’t find the argument compelling that laws should bow to the philosophical wishes of a few founders, or how they perceived liberty. How can that be a practical or sensible compass to govern? They can serve as guiding lights, and should influence our own views in many ways. But it is “liberty” as enshrined in the Constitution that should garner the heavy protection you argue for, not a mystical, undefinable liberty that a few judges gather from philosphy.
That is why “substantice due process” and other such rights must derive from the Constitution. Even the most “liberal” judges will base their liberty and rights opinions on Constitutional provisions. I sense an even more radical position from you, though, in arguing protection for liberties not even enshrined in the Constitution. Am I reading that correctly? “Liberty” can be an exalted goal that requires high hurdles to restrict, but the definition of “liberty” should in some way be determined by the people, through the Constitutional text.
Is the idea of “inalienable” rights to be dismissed simply because that is contained in the Declaration and not the Constitution? Are inalienable rights guaranteed only through revolution?
What “inalienable” rights are not enshrined in the Constitution? That’s a serious question, but none come to mind immediately.
Josh,
I don’t think the right to privacy is fully enshrined in the Constitutional prohibition of unreasonable searches, but I think such a right is nevertheless inalienable. Also, a majority of the Supreme Court in 1973 obviosuly didn’t believe that a “right to life” is so enshrined.
The Constitution’s language would also seem not to address discrimination on the basis of sexual orientation. I think a case can be made that there is an inalienable right to be gay that the Constitution and laws of the land do not recognize. My basis for that is my thought that, while it can’t be proved, that God may have created some people to be gay. If he did, then there would be inalienable rights connected to such orientation.
Are you claiming that all aspects of “life, liberty and the pursuit of happiness” (the chief example of inalienable rights in the Declaration) are guaranteed by the Constitution?
Josh wrote:
I’m not sure which of the two, the bill of rights or liberty in general, carries “the force of a strong majority”. I don’t think either does. Indeed, if you put the bill of rights up to a vote today I doubt much of it would survive intact. And I don’t think that fact makes the principles of liberty inherent in our founding any less compelling or necessary. Indeed, it makes them all the more important.
I do agree that we must strike a balance, in the sense that we must define when a majority may legitimately use the power of the state and when they may not. And in doing so, we must look not only at the bill of rights itself but to the natural rights philosophy that it was written to enshrine. More on that later.
I don’t think they are nearly as separable as you imagine. For instance, the 9th amendment requires that we look outside the Constitution and the bill of rights themselves because it specifically recognizes that there are rights that exist that were not written in that document. Therefore it is necessary that we have some criteria for determining when a given assertion of unenumerated rights is legitimate and when it is not, which is simply the other side of the coin of the question of when a given assertion of authority on the part of government is legitimate or not. And that criteria, I argue, was given to us by the founders themselves in the Declaration and in other documents which defined the legitimate aims of government and the reasons why we institute them in the first place – to protect the rights we each have that precede government. So what you refer to here as “bow[ing] to the philosophical wishes of a few founders” I call applying the principles upon which the nation was founded in the manner that the Constitution demands that we must.
If we were to allow “the people” to decide today what they think liberty should mean, the bill of rights is gone. All you have to do is look at the furor that a few demagogues can whip up over such trivial non-issues as flag burning, or the popularity in some circles for “hate speech” codes, to see that the bill of rights, if put to a majority vote, would lose today. That is tragic, of course, but it doesn’t mean that we should acquiesce to it. The guarantees in the Constitution were made very difficult to amend for a reason, to prevent such popular attempts to gut those protections. My argument is simply that those protections go far beyond the enumeration of specific rights, as the 9th amendment explicitly says. And in determining how to define the unenumerated rights that the text clearly presume to exist, we must apply the broader principles that spawned the Constitution in the first place rather than asking a public that wouldn’t even accept the enumerated ones if they could get rid of them easily.
I hope we can take up this debate after the middle of May, because as it is my final exams are calling. But hopefully we can resume this interesting dicussion soon.
Josh wrote:
I’m sure we’ll have plenty of time and opportunity to hash out this and many other issues. Good luck on your exams, which I’m thankful not to have to worry myself about.
Joel wrote: I don’t think the right to privacy is fully enshrined in the Constitutional prohibition of unreasonable searches, but I think such a right is nevertheless inalienable.
I, on the other hand, think the Bill of Rights all but proves that there can’t be an inalienable right of privacy. Why? Because the Fourth Amendment specifically states when one’s privacy may be alienated. A mere showing of probable cause can authorize gov’t agents to intrude on your home and go through everything you own. That’s a far cry from the sort of minimal ‘time, place, and manner’ restrictions that are tolerated with regard to other inalienable rights.
No comments yet. -Hide Original Post Between this post and the attached comments alone I have seen judicial activism defined in various shades from meaning when a judge actively strikes down a law because they believe it to be non constitutional across the spectrum to when a judge does not strike down a law which is blatantly non constitutional. In fact in the long essay by Sowell one will find, rather than a definition of judicial activism, an attempt to obscure the definition.
“Judicial activism” and “judicial restraint” raise logically obvious but often ignored questions: Activism toward what? Restraint toward what? Are judges deemed to be activist or restrained toward (1) the current popular majority, (2) the legislature representing the current popular majority, (3) the statutes passed by present or past legislatures, (4) the acts of current of past executive or administrative agencies, (5) the meaning of the words in the Constitution, (6) the principles or purposes of those who wrote the Constitution, or (7) the legal precedents established by previous judicial interpretations of the Constitution?
One would think an essay posing such questions at the beginning might try to clarify. But instead Sowell seems to at turns support then decry each of the above points. Makes me wonder why the hell I wasted 20 minutes reading a meaningless essay that doesn’t provide even Sowell’s own opinion on what judicial activism means.
I do find it amusing that most of these “liberal” activist judges the right is whining about are in fact republican appointees. In fact 94 of the 162 federal judges are republican appointees. Now I’m not a lawyer (actually I’m a highschool drop out who works construction) but even I can see through this rhetoric to the core problem. It’s not the “liberal” judicial activists that the right is worried about. It’s the supposed shortage of “conservative” activist judges. But that doesn’t really define the problem either. I know folks who would argue for example that denying homo-sexuals the right to get married is un-constitutional, yet the courts have always ruled against allowing same sex couples to be legally married.
The real problem lays in the fact that the right wants judges who will overturn more than 70 years of legislation. They want to be rid of minimum wages, environmental legislation, the 40 hour work week, social security, OSHA’s workplace safety regulations and a host of other laws that most Americans take for granted and have no idea could possibly be in jeopardy. The same logic that calls for regress back to the ’30s would also have to repeal child labor laws. I think most people would agree having orphans working in sweatshop firetraps instead of going to school. Of course that same logic would pretty much need to abolish public schools so we might as well find something for the little tykes to do. I know it sounds so very Charles Dickens but hey, that’s what we had before these laws were past.