Rand Paul on Lochner

[Quantum Windbag]

This is a key case for Liberals and modern day statists, though for different reasons. Does the government have the authority to limit your right to make a contract? Modern day progressives argue that Lochner is the worst thing to happen since Dred Scott, but they use the exact same unwritten rights logic to defend Roe. During his filibuster Paul mentioned he would like to open a conversation with Obama about reexamining Lochner it caught the attention of quite a few people. I don't know how serious he is about this, but it does give me some hope that we can finally be getting back to the proper limits on government power. We need more people like Rand in the government.

The Progressive movement hated the Lochner decision because it limited state power, particularly the power of the government to regulate economic activity. The left also denounced the decision as an archetype of judicial activism, and set about demonizing the decision and the Court that produced it, especially during the New Deal era of the 1930s, when the Court struck down many of Franklin Delano Roosevelt's ambitious new programs.
When the Court ultimately rejected the Lochner limits on state regulatory power in 1937--after intense pressure from the Roosevelt administration--the left celebrated. And the left-leaning legal academy has continued to teach the Lochner case as though it were a profound injustice, the result of a plutocratic Supreme Court doing what it could to protect rich corporate interest from state and federal government intervention to protect the workers.
Curiously, conservatives began invoking Lochner as a negative precedent in the 1970s, after the Court ruled in Roe v. Wade that there was a due process right to privacy. Suddenly, the "substantive due process" right that the left had rejected in Lochner became the basis of pro-choice arguments. Conversely, conservatives began to criticize substantive due process--and to echo the complaints Progressives once made about judicial activism.
One of the amazing observations made by legal scholar David E. Bernstein in his brilliant book, Rehabilitating Lochner (University of Chicago Press, 2011), is that the old Progressives were so committed to upholding state powers that they were prepared to tolerate--and even defend--state laws enforcing racial segregation. It was the pro-Lochner camp that defended civil rights--and indeed, many early civil rights cases relied on Lochner's logic.

Rand Paul, in Drone Filibuster, Tells Obama to Revisit Lochner Case

 

[Avatar4321]

This is the problem with Griswold v Connecticut. It's based on the faulty reasoning used in Lochner.

 

[Quantum Windbag]

This is the problem with Griswold v Connecticut. It's based on the faulty reasoning used in Lochner.

How is it faulty to say we have rights even if they are not listed in the Constitution? The simple fact is that the only thing the Constitution does is enumerate the powers of the government, our rights are unenumerated.

 

[Oldguy]

Paul wants Obama to revisit a Supreme Court decision? And do what? What does he think Obama could do about it, if he wanted to?

 

[Quantum Windbag]

Paul wants Obama to revisit a Supreme Court decision? And do what? What does he think Obama could do about it, if he wanted to?

The OP is not about what Rand Paul wants, is it?

 

[Avatar4321]

This is the problem with Griswold v Connecticut. It's based on the faulty reasoning used in Lochner.

How is it faulty to say we have rights even if they are not listed in the Constitution? The simple fact is that the only thing the Constitution does is enumerate the powers of the government, our rights are unenumerated.

I never said we didn't have rights not listed in the Constitution. I said we don't have Constitution rights if they aren't listed in the Constitution.

If we want any rights outside the Constitution to be Constitutional rights, we need to amend the Constitution to include them.

The logic for the "substantive due process" cases, whether under Lochner or Griswold is lacking specifically because they are trying to create rights that are not specifically enumerated by the Constitution. Some may be rights. Some may not. That doesn't address the issue of whether they are Constitutional or not.

 

[Quantum Windbag]

This is the problem with Griswold v Connecticut. It's based on the faulty reasoning used in Lochner.

How is it faulty to say we have rights even if they are not listed in the Constitution? The simple fact is that the only thing the Constitution does is enumerate the powers of the government, our rights are unenumerated.

I never said we didn't have rights not listed in the Constitution. I said we don't have Constitution rights if they aren't listed in the Constitution.

If we want any rights outside the Constitution to be Constitutional rights, we need to amend the Constitution to include them.

The logic for the "substantive due process" cases, whether under Lochner or Griswold is lacking specifically because they are trying to create rights that are not specifically enumerated by the Constitution. Some may be rights. Some may not. That doesn't address the issue of whether they are Constitutional or not.

The right to contract is not a Constitutional right, it is a right that exists outside the Constitution.