It is often argued that regulatory takings doctrine is a form of “Lochnerism” and a revival of “substantive due process” constraints on economic regulation. So, for instance, in his Dolan v. Tigard dissent, Justice Stevens traces the history of the doctrine to the Lochner period and finds the roots of regulatory takings doctrine in late-19th century substantive due […]
Tag Archives | Lochner
How I’d Approach the Privileges or Immunities Issue in McDonald
Let’s say someone hired me to write an amicus brief in the McDonald Second Amendment case, and my goal was to get the Court to overrule the SlaughterHouse Cases (holding that the Privileges or Immunities Clause is a virtual nullity) and get the Court to hold that the Clause protects a right to bear arms, […]
Louis Brandeis and the Incorporation Doctrine
By David Bernstein on October 28, 2009 1:28 am in Constitutional History, Freedom of Speech, Supreme Court
I’ve read most of Mel Urofsky’s new biography of Louis Brandeis, and it’s an extremely good, and very informative, book. But I’m afraid that Mel vastly exaggerates Brandeis’s influence on the Supreme Court’s adoption of the “incorporation doctrine”, to wit: (1) p. 618: “Scholars now believe that the Fourteenth Amendment … was intended to extend […]