I should add that a forthcoming paper of mine, Lochner Era Revisionism, Revised: Lochner and the Origins of Fundamental Rights Constitutionalism, 82 Geo. LJ. __ (forthcoming 2003, available on SSRN) establishes, to my satisfaction at least, that Meyer and Pierce, cited favorably by Kennedy, were utterly Lochnerian decisions, and that the Court's modern SDP jurisprudence flows directly from Lochner. Unlike many who reach that conclusion, I don't argue that this is necessarily a criticism of modern SDP jurisprudence, though I don't endorse Lochner, either.
Professor David E. Bernstein
George Mason University School of Law
http://mason.gmu.edu/~dbernste
blog: http://bernstein.blogspot.com
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My latest book, You Can't Say That!
The Growing Threat to Civil Liberties
from Antidiscrimination Laws, will
be published in October
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