Jasper Finke, Crisis and Law - New York University School of Law

can it be maintained that their industrial labor relations constitute a forbidden
field into which Congress may not enter when it is necessary to protect interstate
commerce from the paralyzing consequences of industrial war?” 72
It is unlikely that Hughes would have evoked the evils of industrial war if the NLRA had been
passed against the factual background of the 1920s.
Just as the factual situation had arguably influenced the decision in Jones & Laughlin, it was also
of importance when deciding West Coast Hotel. Even though it explicitly overruled Adkins, and
even though it seems unlikely that the Lochner Court would have upheld it, the doctrinal
differences between these two cases, as demonstrated above, were not that fundamental. 73 The
core question in all cases was: what constitutes a reasonable exercise of the states’ police power?
That this question and the underlying issue of unequal bargaining power might have be answered
differently at times when real wages were rising considerably, as in the 1920s, compared to harsh
economic times, as during the Great Depression, is hardly surprising. Still, West Coast Hotel, like
Jones & Laughlin, was a 5:4 decision. What separated the majority from the minority, it seems,
was among other things the relevance of “facts”. For the dissenters, the term reasonableness had a
fixed meaning. It was determined not by the circumstances of the case, but by the imperatives of
their ideals. In his dissent for the Court’s new minority, Justice Sutherland simply referred to
Adkins and Morehead. That the Court in these cases had struck down similar laws appears to have
settled the matter for him once and for all. Changing economic conditions were altogether
irrelevant. “[T]he meaning of the Constitution does not change with the ebb and flow of economic
events.” 74
72 Id., 42.
73 See above ‘Doctrinal Continuity: The Common Ground of West Coast Hotel and Adkins’, page 15 et seq.
74 West Coast Hotel, 300 U.S. 402 [internal quotation marks omitted].