Ginsburg’s question presupposes an inaccurate (to put it mildly) narrative about the development of marriage law.
The next Liberty Law Talk podcast is a conversation with David Bernstein about his new book Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform. Professor Bernstein provides in this book a layered analysis of the constitutional reasoning and social and labor history behind the Lochner decision, rendering it vastly more complicated than the regnant progressive narrative of the case. In 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.
Also new on Law and Liberty is this review by Cato’s Ted Galen Carpenter of John Yoo and Julian Ku’s new book Taming Globalization: International Law, the U.S. Constitution, and the New World Order.