I contributed one chapter to this collection of essays. Not surprisingly, I wrote about Lochner and liberty of contract jurisprudence, and its uneasy relationship to constitutional conservatism. It’s an excellent book on an understudied topic. The one major impression I get from studying this general topic is that while the Progressives knew to a large […]
Archive | Rehabilitating Lochner
Ian Millhiser on Conservatism and the Judiciary
Over at ThinkProgress, Ian Millhiser has a piece on conservative and the judiciary that ranges over many decades and many topics. Unfortunately, much of it is very tendentious and sometimes just wrong. It’s too much to do a detailed critique, so I’ll be brief and limit myself to his general historical perspective. [DB: Sentences in […]
Posner on Lochner (UPDATED: Posner versus Posner?)
By David Bernstein on November 6, 2013 8:25 am in Constitutional History, Constitutional Theory, Rehabilitating Lochner
While I greatly admire Judge Richard Posner’s amazing corpus of work, I’ve noticed in recent pieces that he has a tendency to state propositions as indisputable, absolute truths when they are at least disputable, and sometimes flat wrong. Here is an example. Posner writes in the California Law Review: The majority opinion in Lochner is […]
Kens on Rehabilitating Lochner
Paul Kens, a professor of political science at Texas State University, is the author of Lochner v. New York: Economic Regulation on Trial. I described the book in 2011 as “The last major scholarly work on Lochner to propound the traditional view of Lochner–that its origins lie in ‘laissez faire Social Darwinism’ and that its […]
Article on Buchanan v. Warley
In 1917, the Supreme Court decided Buchanan v. Warley, holding that it was unconstitutional to ban blacks from buying property on blocks where mostly whites resided, and vice versa. Buchanan was, in my opinion, a very important case, but it has mostly languished in obscurity. Last week, however, Senator Rand Paul talked about Buchanan on […]
Ian Millhiser of Think Progress on Paul and Lochner
Attorney Ian Millhiser of the “liberal” Center for American Progress is quite agitated by Sen Paul’s speech yesterday, and not because he is concerned about potential abuses of executive authority. Rather, it’s because Paul had the temerity to refer favorably to Lochner. This provoked Millhiser’s response (h/t Alex Tabarrok), which is full of disingenuous statements: […]
Rand Paul on Lochner, Buchanan v. Warley, and Oliver Wendell Holmes
Embedding the video isn’t working, so here’s a link to the relevant remarks (courtesy of Breitbart.com). I haven’t had a chance to blog about this, but Sen. Paul and everyone else who complain that defining “due process” for a drone strike as review within the executive branch is completely contrary to what due process has […]
The Significance of West Coast Hotel v. Parrish: Originalism vs. Living Constitutionalism?
By David Bernstein on October 10, 2012 3:48 pm in Constitutional History, Constitutional Law, Constitutional Theory, Rehabilitating Lochner
In West Coast Hotel v. Parrish (1937), the Supreme Court upheld a minimum wage law for women, reversing two earlier contrary precedents. West Coast Hotel is often seen as the end of the so-called “Lochner era.” Some conservatives celebrate West Coast Hotel, not simply as a victory against “judicial activism,” but because the Court purportedly […]
Quick Response to Amar
I’m busy today teaching two classes, but I can’t resist a quick response to Akhil’s rejoinder. First, while I have a great deal of respect for Jed Rubenfeld and Laurence Tribe, I don’t find their adoption of the “Lochner as redistribution” thesis terribly compelling. Professor Tribe’s 1972 article adopts a surprisingly sophisticated understanding of Lochner–surprising […]
Amar on Lochner
By David Bernstein on September 12, 2012 3:04 pm in Constitutional History, Constitutional Law, Rehabilitating Lochner
Let me start by expressing my delight that Professor Amar is guest-blogging here at the VC. Akhil is clearly one of the great constitutional scholars of our time, and I have learned a great deal from his work over the years. It’s therefore with some trepidation that I engage in this blog dialogue with him. […]
Echoes of Robert Hale
By David Bernstein on September 4, 2012 5:00 pm in Constitutional History, Constitutional Law, Constitutional Theory, Rehabilitating Lochner
Dale’s post below on Robert Delahunty’s claim that the end of slavery came at the cost of slaveholders’ freedom, and that likewise legally recognized same-sex marriage would come at the expense of the freedom of those who want to live in a society without such things, reminds me of the great Progressive legal and economic […]
How Did this Get Past The New Yorker’s Fact-Checkers?
The current issue of The New Yorker has an article by Jill Lepore on the history of the Supreme Court’s struggle for independence. The article talks too much about the varying quality for the Court’s chambers over the years, but is otherwise a good introduction to the topic, albeit from an implicitly liberal perspective. The […]
On Whiggish Constitutional History and the History of Women’s Constitutional Equality
Attorney Rob Weiner has a guest post over at Balkinization decrying challenges to the ACA. Weiner claims that the challenges reflect nostalgia for a bygone era and discredited doctrines. I disagree for reasons that have been repeated many times on this blog (essentially, the challengers are attacking a broad new and novel expansion of federal […]
The Washington Post on Lochner and The ACA
By David Bernstein on April 9, 2012 7:54 pm in Constitutional History, Constitutional Law, Rehabilitating Lochner
Supreme Court reporter Robert Barnes has a piece today about the role of Lochner v. New York in the ACA litigation. The Solicitor General told the Court at oral argument that invalidating the ACA would bring back Lochner, and last week President Obama said, “A law that was passed by Congress on an economic issue, […]
Obama on Lochner v. New York
President Obama said the following today when asked about the constitutional litigation over the ACA: Well, first of all, let me be very specific. We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce — […]