[The Volokh Conspiracy] Eric Muller on Lochner, Justice Brown, and David Bernstein:

[Eugene Volokh]

A very good post; here's an excerpt: Before you get apoplectic about how outrageous it is to suggest that Lochner had even a wisp of validity to it, just do this little experiment. Here are the rules: You are given a copy of the Constitution. You are instructed that the Constitution protects one fundamental freedom that is not specifically mentioned. Only one. And you're told that it is either (a) the right of a person to grow a vegetable on his farm and sell it to his neighbor, or (b) the right of a terminally ill person to receive pain medication in an amount that, while necessary to manage the pain, will also kill her. Remember, the only hints you've got on the question are hints you can find in the Constitution itself. Which would you choose? Admit it: you'd choose (a). And that's because the people who drafted the Constitution made no secret of their desire to protect their property rights; they studded the document with references to those rights. The textual hints that lead to choice (b)--to the extent that they're there in the text at all--are certainly more remote. . . . Read the whole thing -- very well put. (And, yes, I am indeed blogging little today and for the next few days; I just had a brief block of time to put up a few things.) -- Posted by Eugene Volokh to The Volokh Conspiracy at 11/3/2003 11:36:45 AM Powered by Blogger Pro