David Bernstein on Rehabilitating Lochner and the Freedom to Contract
"Either the Commerce Clause gives Congress a plenary power to regulate anything it pleases or it doesn't; and let's have that argument," says George Mason ...
The reason Obama referred to the Lochner era, is simply that it is a common
term. The Lochner case not a huge case by it's self, but it was the first
case in a series of cases that follow the same conservative view on many
cases. It was this Lochner era court that made the Dred Scott decision. Why
history picked this very case for the name of the era is not really that
clear and could be unfair, but the Lochner era is what it is called.
I am fairly liberal on economic matters, although I detest the nanny state,
War on Drugs, etc., but I DO see that there's a case to be made about NOT
using the Commerce clause for whatever LIBERAL economic ends you want! It's
insane. You can't use the Commerce Clause for ABORTION! For crying out
loud. I'm prochoice, but I would NEVER use it to justify abortion. There
are much better justifications for legal abortion.
"“Either the Commerce Clause gives Congress a plenary power to regulate
anything it pleases or it doesn’t; and let’s have that argument,”" Let's
also have another argument. I think that 'plenary' should not be a word. It
causes nothing but trouble. Who's with me?
Is 'Lochner' short for 'Lochness Monster'? If so, I don't think he should
be rehabilitated at all. All he does is swim around all day eating algae
and fresh-water plankton. He's not bothering anyone. Leave him alone,
Reason Teevee!
I think the federal court system, in a way, has become far too partisan and
political. BOTH sides of the aisle wanna use it for THEIR ideological
purposes, rather than keeping it independent like it should be.
Prof. Bernstein, you've packed on the pounds, possibly from too much baked
goods, and starting to resemble the grotesquerie who is Leiter. It's
unhealthy. Please go low-carb or something.
@Loathomar Um, no. Lochner was decided in 1905, and Dred Scott was decided
in 1857, so there is no way it was the "Lochner era court that made the
Dred Scott decision."