Free Republic

Kentucky’s junior senator, Rand Paul, gave a provocative talk at the Heritage Foundation on January 13, in which he discussed the role of the judiciary. During that talk, he said something that most American lawyers have been conditioned to think of as heresy: he said that the Supreme Court’s 1905 decision in Lochner v. New York was right. Saying anything good about Lochner among the vast majority of American lawyers and judges is like telling a group of college history professors that Calvin Coolidge was a great president. Senator Paul has the courage to say controversial things and doesn’t fear...

As reported in a Wall Street Journal column: He spoke slowly, with long pauses, giving the sense that he was speaking with great thought and precision: "Well, first of all, let me be very specific. Um [pause], we have not seen a court overturn [pause] a [pause] law that was passed [pause] by Congress on [pause] a [pause] economic issue, like health care, that I think most people would clearly consider commerce. A law like that has not been overturned [pause] at least since Lochner, right? So we're going back to the '30s, pre-New Deal."Lochner v. New York is one...

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...

Summer 2009Vol. 4, No. 2This article is from TOS Vol. 4, No. 2. The full contents of the issue are listed here. Justice Holmes and the Empty Constitution Thomas A. BowdenOn April 17, 1905, Justice Oliver Wendell Holmes Jr. issued his dissenting opinion in the case of Lochner v. New York.1 At a mere 617 words, the dissent was dwarfed by the 9,000 words it took for the Supreme Court’s eight other Justices to present their own opinions. But none of this bothered Holmes, who prided himself on writing concisely. “The vulgar hardly will believe an opinion important unless...