The Federal Government is No Longer the Trustworthy Guardian of Individual Rights By OREN M. LEVIN-WALDMAN

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Oren M. Levin-Waldman, Ph.D.

The United States is a federal system, which means that power and authority are divided between the states and the national government. Constitutionally speaking, states and the national government are equal in their sovereignty. Although we refer to the national government as the federal government, the federal government is technically all the states and the national government together.

Historically states were responsible for domestic affairs —schools, public welfare, and police protection — and the national government was responsible for securing our borders, maintaining a common defense, coining money, and conducting foreign policy. Until the Great Depression in the 1930s, the federal government, as we call it, played little role in matters of regulation or economic policy generally speaking. Those were matters reserved to the states.

What changed? Simply stated, the states were ill equipped to address the welfare needs of the millions who suddenly found themselves out of work due to the Great Depression. The states needed assistance from the federal government. It was during this period that the Wagner Industrial Relations Act and the Fair Labor Standards Act were enacted.

The Wagner Industrial Relations Act legitimized union membership and collective bargaining as a tool for propping up the wages of workers in an arena of asymmetrical power relations between workers and employers. The FLSA, of course, legislated the first federal minimum wage, which was also aimed at propping up the wages of those not covered by unions. Both were born out of an understanding that during a depression when wages are depressed labor market institutions that can help raise wages are needed. But they were also born out of an understanding that there was nothing “natural” about wage setting as commonly stated by neoclassical economists.

And yet, there is more to it. During the period from the 1930s until the present, especially with passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965, and with the federal government asserting greater authority against states rights, it also became clear that the states were becoming untrustworthy guardians of the rights of individuals, which would include basic civil liberties and civil rights.

Following the Civil War, the Thirteenth, Fourteenth and Fifteenth Amendments were added to the Constitution. The Thirteenth Amendment ended slavery and the Fourteenth created the Equal Protection Clause and became the basis for nationalizing the Bill of Rights, which until then only applied to the national government. The Fifteenth Amendment prohibited states from denying the vote on the basis of race.

If we consider the larger context, it became clear in the 1960s into the present that the states could not be trusted to protect the rights of its citizens; only the federal government could. Ironically, we have seen a reverse of that message in recent years with many states refusing to cooperate with the federal government on immigration and border control, and the minimum wage.

With increasingly more states passing their own minimum wages at a rate higher than the federal minimum, many states are effectively responding to the failure of the federal government to maintain the minimum wage with a clear message: the federal government has now become the untrustworthy guardian of the economic security interests of the people.

Justice Louis Brandeis once famously observed that the states in the federal system were laboratories of democracy. By that he meant, they were the arenas in which policies could be experimented with as demonstration projects. If successful at the state level, they could then be tried at the national level. Indeed, early state minimum wage laws were the experimental laboratories for what became the federal minimum wage in 1938.

Now states are effectively saying that because the federal government can no longer be trusted as guardians of workers’ economic interests, the state will now take care of it. On one level, this is a return to traditional federalism. But on another level, it is the states picking up the pieces because the federal government has abdicated responsibility to its citizens.

Of course, this might presuppose that maintaining a liveable wage for workers is indeed constitutive of a civil liberty and that the minimum wage is a civil rights issue. To date, there is no such definition. But given the history of federal authority in economic policy, it might well be implied. The federal government became involved in economic regulation as a matter of Interstate Commerce so that there could indeed be a uniform set of standards throughout the country. After all, one set of standards were needed because in their absence, citizens in some states were effectively enjoying more rights than in other states.

With the federal government’s abdication of responsibility on the minimum wage and other worker protections, and with states taking it upon themselves to pass higher minimum wages, the states are once again creating a system whereby workers effectively enjoy more rights in some states than in other states.

Given that there are different standards of living in different parts of the country, there is a logic to having different minimum wages. But there still needs to be a minimum uniform floor throughout the country. More importantly, there is a clear need to define basic economic security in terms of civil rights. Economic security is certainly one of the basic rights in The Universal Declaration of Human Rights.

Were a minimum income defined as a basic civil liberty, it would be much more difficult for the federal government to abdicate responsibility because the federal government would have a positive obligation to protect it. Wouldn’t it be refreshing if instead of the standard bromides bandied about by Democrats and Republicans, not to mention discourse over Russian interference in American elections, we could engage in a serious discussion of what the rights of workers are and the necessary steps to secure them?

Movement back to an old federalism doesn’t necessarily get us there, but if we are going to have a discussion about who is a trustworthy guardian of individual rights, then it is time to include economic rights as part of that discussion. Now that would make for a good political campaign, as well as it would seriously demonstrate who really cares about the middle class.


Restoring the Middle Class through Wage By Oren M. Levin-Waldman Publisher:  Palgrave MacMillan

This book makes the case for minimum wage as a way to improve well-being of middle-income workers, reduce income inequality, and enhance democracy….


Minimum Wage: A Reference Handbook – ABC – CLIO




The Minimum Wage: A Reference Handbook By Oren M. Levin-Waldman. As of 2014, the minimum wage in Seattle is $15 an hour — double the federal minimum wage.


Read the review of the just published “Wage Policy, Income Distribution, and Democratic Policy By Oren M. Levin-Waldman.


Oren M. Levin-Waldman, Professor at the Graduate School for Public Affairs and Administration at Metropolitan College of New York, Research Scholar at the Binzagr Institute for Sustainable Prosperity, as well as faculty member in the Milano School for International Affairs, Management, and Urban Policy at the New School. Direct email to


eHeziThe Federal Government is No Longer the Trustworthy Guardian of Individual Rights By OREN M. LEVIN-WALDMAN

Comments 1

  1. A good article and well framed – thanks.
    Unfortunately this could also be very well framed from a perspective where government never misses an opportunity to exploit a current situation to it’s own benefit.
    This appears to be the case locally and nationally. It’s all a simple power play.

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