Liberty in Law School

Accuracy in Academia ^ | February 9, 2011 | Malcolm A. Kline

[Academiadotorg]

Law school students may not only be getting an incomplete view of American history but a misleading notion of the Law of the Land, a dissident professor shows in a new book. “Modern scholars also refer to the early 20th Century as the ‘era of laissez-faire constitutionalism’ because they see it as a time when judges injected a radical libertarian, or laissez-faire, philosophy into their constitutional decisions,” David N. Mayer writes in Liberty of Contract: Rediscovering a Lost Constitutional Right. “Indeed, the stereotypical view sees the Lochner era as a time when American judges, motivated by the desire to further the interests of rich capitalists, perverted the original meaning of the due process clauses in order to engraft a laissez-faire ideology—commonly caricatured as synonymous with the doctrines of ‘Social Darwinism’—on the Constitution.”

“This view so dominates modern scholarship that it is the orthodoxy of college textbooks, both the casebooks used in law school constitutional law classes and the textbooks used in undergraduate and graduate courses in constitutional and legal history.” Mayer is a professor of law and history at Chapman University in Ohio.

The Lochner decision referenced by Mayer was decided by the U. S. Supreme Court in 1905. In it, the Court decided that “Section 110 of the labor law of the State of New York, providing that no employees shall be required or permitted to work in bakeries more than sixty hours in a week, or ten hours a day, is not a legitimate exercise of the police power of the State, but an unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract in relation to labor, and, as such, it is in conflict with, and void under, the Federal Constitution.”

[Springfield Reformer]

ping for later

[phockthis]

interesting

[Jacquerie]

Good column. The court got it right in Lochner.

The court stood against a building wave of new social justice thought. Immigrants pouring into the US were living in squalid conditions, Otto Von Bismarck's new welfare state seemed to be going well. There we no piles of income tax money to redistribute, and states were constantly getting in the way of social justice reforms. To top it off, the recent Civil War convinced many that coercive government power could be a societal good. The new liberals regarded the old fear of government as quaint and irrational.

Randy Barnett, in his "Restoring the Lost Constitution," writes, "When the liberty of the individual clashes with the power of the state, the Court would not accept the mere assertion by a legislature that a restriction of liberty was necessary and proper. Instead, it required a showing that a restriction of liberty have a "direct relation, as a means to an end," and that the "end itself must be appropriate and legitimate." That was the essence of Lochner.

Today, the assumptions are reversed. Rather than presume a general right to liberty [Ninth Amendment], such as negotiating a wage, the courts have sequestered our rights into two categories, Fundamental and mere Liberty Interests.

The Fundamental Rights involve abortion, speech, press and sex. The courts require the government to defend any remote infringement of these. Think about recent court cases. The libs and courts go nuts over these issues.

So called Liberty Interests are fair game for government restrictions. They include religious expression, the second, fourth, ninth and tenth amendments. Again think of recent court cases. Your right to religious expression, simple commerce, and firearms are severely curtailed. You cannot freely negotiate terms of employment, your bank and medical records are not secure, the list goes on.