Posted by Randy Barnett:
What's So Wicked About Lochner?
http://volokh.com/archives/archive_2005_05_08-2005_05_14.shtml#1115921818
My latest upload to SSRN is a short Foreword the symposium on Lochner
v. New York that is forthcoming in the [1]NYU Journal of Law and
Liberty. Inspired by the musical [2]Wicked, it is entitled, [3]What's
so Wicked About Lochner? Here is the abstract:
In this brief Foreword to a forthcoming symposium on Lochner v. New
York, I ask the question, What's So Wicked About Lochner? Modern
Progressives cannot complain about its protection of so-called
substantive due process, since they favor just that. Nor can they
claim that Lochner violates the original meaning of the Fourteenth
Amendment, since these legal analysts by and large reject
originalism altogether. This leaves only today's judicial
conservatives to adhere to a purified Roosevelt New Deal
jurisprudence of disdain for Lochner.
My answer is that Lochner is objectionable precisely because its
reliance on the Due Process Clause perpetuated the serious
misinterpretation of the Fourteenth Amendment established by the
5-4 decision in The Slaughter-House Cases. While Lochner's use of a
presumption in favor of the liberty of citizens is basically
sound--however well it may have been applied in the actual
case--its reliance on the Due Process Clause, rather than on the
Privileges or Immunities Clause undermined the legitimacy of its
method. I then offer the outline of an approach to Section 1 of the
Fourteenth Amendment that gives a distinct meaning to each of its
four Constitution-altering clauses.
My other recent uploads to SSRN are:
[4]
Trumping Precedent with Original Meaning: Not as Radical as It Sounds
[5]Why You Should Read My Book Anyhow: A Reply to Trevor Morrison
[6]Grading Justice Kennedy: A Reply to Professor Carpenter
References
1. http://www.law.nyu.edu/journals/liberty/
2. http://www.wickedthemusical.com/
3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=721507
4. javascript:openWindow('/sol3/papers.cfm?abstract_id=714982');
5. javascript:openWindow('/sol3/papers.cfm?abstract_id=695844');
6. javascript:openWindow('/sol3/papers.cfm?abstract_id=694321');
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