Re: Why Wasn't Lochner (Formally) Overruled?

[David Bernstein]

I don't think Lochner was about reining in interest group politics, and it certainly wasn't understood that way in the post-New Deal era until Howard's book. Rather, Lochner was about, and was understood to be about, protecting fundamental liberties from unreasonable government interference (I have a forthcoming Georgetown Law Journal article on this, available at SSRN).  Justice Souter has commented that Meyer and Pierce were right, and Lochner was wrong, only because the Court was incorrect in thinking that liberty of contract deserves protection as a fundamental right, not in abstracting fundamental rights from the due process clause. In that sense, Lochner has in fact not been overruled, but has indeed been resurrected in the Court's modern substantive due process jurisprudence, of which Lawrence v. Texas is both the most recent and the clearest example.     In a message dated 10/30/2003 12:50:54 PM Eastern Standard Time, [EMAIL PROTECTED] writes: This is an interesting question.  As Howard notes, one can overrule the holding in Lochner without rejecting the premise that courts should serve as active monitors of what is increasingly becoming an interest-group polity characterized by attempting to capture the machinery of government in order to reward one's friends 9i.e., seek otherwise illegitimate rents) and hinder one's adversaries.  In some sense, that doesn't get overturned (assuming it has been) until such cases as Williamson and Hawaii v. Midkiff, where the court establishes a basically non-rebuttable presumption that whatever a legislature says is "the public interest" just is, by virtue of that assertion, dispositive with regard to a reviewing court.  I begin my course on the welfare state by asking students to read UAW v. Lyng and ask whether it matters (or should matter) that the court is persuaded that Congress is engaged in a good faith effort to "level the playing field" (by barring food stamps to strikers) as against intervening in a class war on the said of management against labor.  If one believes that it does matter--i.e., that one must demonstrate a good faith belief that it serves the public interest (and how exactly does one do this), then Lochner is still alive and well.  Indeed, isn't the present litigation attacking blatantly partisan gerrymandering Lochnerish?  Tom DeLay has no conception of "neutrality" and "fairness."  He is out to use all of the power at his command to marginalize the Democratic Party (which he, of course, insists on calling the "Democrat" Party), just as Phil Burton, in California, used all the power at his command to do the same to California Republicans in the 1980s.  Now one can, I suppose, argue that enhancing the Republican (or Democratic) Party just *is* to enhance the public welfare.  Must a court believe this, or can a court simply say "To the victor belongs the spoils.  That's what politics is really about, and the Constitution puts few limits on the ability of the winning majority to loot the treasury or stack the political process in their favor." sandy     Professor David E. Bernstein George Mason University School of Law http://mason.gmu.edu/~dbernste blog: http://volokh.com/index.htm?bloggers=DavidB *********************************************** My latest book, You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws, has just been published ***********************************************