David is right about the other difference between Bunting and Lochner, although he might agree that it is difficult to disentangle whether the Court was REALLY reacting to the competing "degrees" of interference with liberty of contract or whether they were focusing on the question of whether the law had a reasonable relationship to public health and safety.
This isn't the best forum to debate our competing interpretations of the nature of this jurisprudence. I recommend David's paper to everyone; it's a very smart and thorough review of the cases during this era. For what it's worth, I think it is a mistake of "presentism" to assume that the Lochner era judges were engaging in the equivalent of modern "preferred freedoms" jurisprudence (where the key question was something like, "which fundamental rights deserve our special protection?"). There is no doubt that the jurisprudence had a libertarian underpinning; but it still seems to me that the key question being asked in these cases was whether certain exercises of the police powers were reasonably related to the promotion of public health, safety, or morality, or whether they did not really promote these purposes and thus represented merely "arbitrary" interferences with liberty. When the Court thought the law promoted public health, safety, and morality the laws were uphel d (even if the laws interfered with liberty -- this is what ties together Holden, Bunting, and even the early free speech cases); when the justices didn't see the public benefit they struck them down (Lochner, Adams, Meyer, Pierce, etc.). In other words, it was a jurisprudence preoccupied with the question of what constituted a valid "public purpose," not a jurisprudence preoccupied with the enumeration of discrete "fundamental rights." Souter's view is a post-preferred freedoms gloss on a jurisprudence that, at the time, was focusing on other questions. (Needless to say, David disagrees; see his paper for more.) IMHO. HG ----- Original Message ----- From: David Bernstein <[EMAIL PROTECTED]> Date: Thursday, October 30, 2003 10:06 am Subject: Re: Why Wasn't Lochner (Formally) Overruled? > 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.
