Ann
"Jonathan H. Adler" <[EMAIL PROTECTED]> wrote:
Justice Scalia does make a slight reference to Lochner in his dissent:
"Texas Penal Code Ann. §21.06(a) (2003) undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery."
Slip Op., Scalia.,J., dissenting, p. 8.
JHA
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Jonathan H. Adler
Assistant Professor of Law
Case Western Reserve University School of Law
11075 East Boulevard
Cleveland, OH 44106
ph) 216-368-2535
[EMAIL PROTECTED]
-----Original Message-----
From: Discussion list for con law professors [mailto:[EMAIL PROTECTED]On Behalf Of David Bernstein
Sent: Friday, July 11, 2003 10:19 AM
To: [EMAIL PROTECTED]
Subject: Lawrence and Lochner
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]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.
Sent from the Internet
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
from Antidiscrimination Laws, will
be published in October
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