Lawrence and Lochner

[David Bernstein]

Lawrence was the first major "substantive" due process case I can think of where none of the opinions engaged in any Lochner-bashing, or for that matter mentioned Lochner at all.  Kennedy's opinion unabashedly cited Pierce and Meyer without apologizing for their Lochnerian origins.  Has Lochner-bashing gone out of vogue suddenly?


In a message dated 7/11/2003 9:53:57 AM Eastern Standard Time, [EMAIL PROTECTED] writes:

[EMAIL PROTECTED]
Sent from the Internet



      If I understand the idea of "a libertarian revolution" correctly--I have not yet read Randy's article--it applies to emphasizing the liberty associated with the due process clause. Right? What about grounding the revolution in the privileges or immunities? Resurrecting the privileges or immunities--which might be desirable in itself--might have (though not necessarily) the added advantage of precluding Lochnerized objections to liberty /due process analysis. I recall Michael Perry and David Richards urging such a resurrection, and, of course, Justice Thomas has indicated his approval of this move, but perhaps for different reasons.  Of course, one would need to argue this in greater detail, but the privileges or immunities clause also seems a hospitable  (normative) home for both positive and negative rights, though there would certainly be historical arguments against this.

Bobby Lipkin
Widener University School of Law
Delaware

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
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