Nothing surpasses the intellectual intoxication and will to power of a federal constitutional lawsuit—democracy be damned.
In the next Liberty Law Talk I discuss with David Bernstein of the George Mason University School of Law his excellent work of constitutional history Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform. The Lochner decision, of course, is a progressive teaching moment in the American legal academy. Virtually any constitutional law course will teach the case as an exercise in laissez-faire fundamentalism that refused to permit sensible labor regulations on behalf of industrial laborers. Fortunately, students are told, it is a constitutional moment that has been superceded by New Deal jurisprudence that upholds virtually any regulation of economic activity.
Professor Bernstein provides in this book a layered analysis of the legal, political, and labor history behind the Lochner decision, rendering it vastly more complicated than the regnant progressive narrative of the case. Of course, as Bernstein states in his conclusion, “alert readers will have noticed that I have titled this book Rehabilitating Lochner—as in improving Lochner’s reputation—not Defending Lochner or Restoring Lochner.” Indeed, and in the course of the podcast Bernstein and I discuss the right of contractual liberty that the majority in the Lochner decision located in the Due Process clause of the Fourteenth Amendment, the lineage of this right, and how it has factored heavily, if not imperceptibly, in subsequent decisions ranging from Pierce v. Society of Sisters to Griswold v. Connecticut.