DOCSLIB.ORG

Lochner Era Jurisprudence and the American Constitutional Tradition Stephen A

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Lochner Era Jurisprudence and the American Constitutional Tradition Stephen A NORTH CAROLINA LAW REVIEW Volume 70 | Number 1 Article 9 11-1-1991 Lochner Era Jurisprudence and the American Constitutional Tradition Stephen A. Siegel Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation Stephen A. Siegel, Lochner Era Jurisprudence and the American Constitutional Tradition, 70 N.C. L. Rev. 1 (1991). Available at: http://scholarship.law.unc.edu/nclr/vol70/iss1/9 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]. LOCHNER ERA JURISPRUDENCE AND THE AMERICAN CONSTITUTIONAL TRADITION STEPHEN A. SIEGEL* Legal scholars and historians have generally depicted the Lochner era as a deviant period during which. the Supreme Court broke from the constitutionalism that the Marshall Court established and the New Deal Court restored. They maintain that the Lochner era Court, which struck down much legislation affecting industrial regulation, strayed from the American con- stitutional tradition by underconstruing the scope of congres- sionalpower and overprotectingprivate property. Several scholars have criticized this view and have presented different theories on the Lochner era'splace in American consti- tutionalism. In this Article Professor Stephen Siegel paints an entirely new picture, rejecting both the traditionaltheory and the more recent ones. Professor Siegel argues that the Lochner era was both similar to and differentfrom itspredecessor and succes- sor eras: it was a transitionalperiod in the American constitu- tional tradition. The Article examines the era'ssubstantive due process cases in terms of their jurisprudence, which was based on a form of thinking that Professor Siegel calls "constitutional conceptual- ism. " He argues that on the one hand, the Lochner era Court was similar to the pre-Lochner era Court in that both based their decisions on constitutional conceptualism; in contrast, the New Deal Court based its decisions on pragmatic interest-balancing. On the other hand, the Lochner era Court was similar to the New Deal Court in that both envisioned the Constitution as evolving with the changes in American society; in contrast, the pre-Lochner era Court viewed the Constitution as static, deter- mined by the unchanging norms of natural law and framer in- tent. Thus, the Lochner era was a transitionalperiod, bridging America's development from early to modern constitutionalism. I. INTRODUCTION ........................................... 2 * Professor of Law, DePaul University. B.A., 1967, Columbia University; J.D., 1971, LL.M., 1972, Harvard University. Previous versions of parts of this Article were presented at the 1987 American Society for Legal History Annual Meeting and at faculty workshops at Northwestern University School of Law, University of Texas School of Law, and DePaul Uni- versity College of Law. I thank all those who attended and gave their critiques of my presenta- tion, especially Charles McCurdy, Sandy Levinson, and Avi Soifer. I also thank the Faculty Research Fund of DePaul University College of Law for its support. 2 NORTH CAROLINA LAW REVIEW [Vol. 70 II. THE THREE APPROACHES TO Lochner ERA SUBSTANTIVE D UE PROCESS ............................................ 6 III. CONSTITUTIONAL CONCEPTUALISM AND THE AMERICAN CONSTITUTIONAL TRADITION ............................. 23 A. ConstitutionalConceptualism .......................... 23 B. Constitutional Conceptualism Illustratedin the Opinions of John M arshall ..................................... 36 1. Marbury v. Madison: Conceptualism in a Structure- of-Government Case .............................. 37 a. The Amenability of High Executive Officials to Legal Process ................................. 38 b. The Judiciary's Power of Judicial Review ...... 40 2. Fletcher v. Peck: Conceptualism in a Civil Liberties C ase ............................................. 44 3. Conclusion ....................................... 50 C. ConstitutionalConceptualism and the Origin of Substantive Due Process ............................... 52 D. Conclusion ........................................... 61 IV. THE SOURCE OF Lochner ERA CONCEPTS AND THE AMERICAN CONSTITUTIONAL TRADITION ................. 62 A. Historism as the Basis of Nineteenth Century Legal and Social Thought ....................................... 66 B. The Impact of Historism on the American Constitutional Tradition ............................................. 78 C. Historism Illustrated in Justice Stephen Field'sSeminal Dissents in The Slaughter-House Cases and M unn v. Illinois ...................................... 90 1. Justice Field's Dissent in The Slaughter-House Cases ............................................. 92 2. Justice Field's Dissent in Munn v. Illinois.......... 96 V. THE TRANSITIONAL NATURE OF Lochner ERA JURISPRUDENCE .......................................... 100 I. INTRODUCTION Until recently, the standard narrative of American constitutional development was that shortly after the nation's founding John Marshall's Supreme Court heroically established the "correct" norms of constitu- tional law and jurisprudence, norms that included broad power for the new national government, protection of private property, and judicial re- 1991] LOCHNER ERA JURISPRUDENCE straint.1 The Court, according to this story, generally adhered to these norms until after the Civil War. Then, in the last quarter of the nine- teenth century,2 judges concerned about protecting big business from the nascent regulatory state departed from the norm of restraint and substi- tuted their values for the principles that the Constitution's framers en- shrined and John Marshall enforced. In this deviant period, known as the Lochner era, the Court underconstrued the scope of congressional power and overprotected private property. The final chapter in this story is that after years of national economic collapse and threats of "court packing,"3 the Court ceased its aberrant behavior. The Court, newly re- constituted as the "New Deal Court," restored the founders' principles, and (as always) truth, justice, and the American way triumphed. Now that the political consensus surrounding New Deal constitu- tionalism is coming apart,4 this narrative is appreciated as a myth created by scholars wishing to justify the New Deal Court's departure from 1. See Bruce Ackerman, ConstitutionalPolitics/Constitutional Law, 99 YALE L.J. 453, 457-58 (1989); Morton J. Horwitz, Republicanism and Liberalism in American Constitutional Thought, 29 WM. & MARY L. REV. 57, 57-63 (1987) [hereinafter Horwitz, Republicanism]; Morton J. Horwitz, History and Theory, 96 YALE L.J. 1825, 1827-30 (1987) [hereinafter Hor- witz, History and Theory]; Sanford Levinson, Book Review, 75 VA. L. REv. 1429, 1449-50 (1989). In light of such cases as Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), which seems to go out of its way to address whether President Jefferson should have delivered Mar- bury's commission and whether high executive branch officials are amenable to judicial pro- cess, see William W. Van Alstyne, A CriticalGuide to Marbury v. Madison, 1969 DUKE L.J. 1, 6-8, contemporary scholars may doubt that Chief Justice Marshall practiced judicial restraint. The standard narrative, however, does not admit that Marshall was an activist justice. See, e.g., James B. Thayer, The Origin and Scope of the American Doctrine of ConstitutionalLaw, 7 HARV. L. REv. 129, 149, 151 (1893). Perhaps it is a measure of the distance we have moved from the standard narrative that Marshall's activism now is more apparent. 2. The conventional wisdom dates the Lochner era from the early twentieth century, when the Court, in Lochner v. New York, 198 U.S. 45 (1905), first voided industrial regulation legislation based upon the doctrine of "liberty of contract." Id. at 64. This view overlooks the facts that by the 1880s the state courts had fully embraced laissez-faire principles and that the Court clearly was moving in that direction. See infra note 9. 3. "Court packing" refers to President Franklin D. Roosevelt's proposal to expand the Court to allow him to appoint enough new and ideologically correct justices to uphold New Deal legislation. See, e.g., DAVID P. CURRIE, THE CONSTrUTION IN THE SUPREME COURT: THE SECOND CENTURY, 1888-1986, at 235-36 (1990). 4. Until the 1970s, commentators usually supported the New Deal Court's decision to legitimate the regulatory state by giving minimal scrutiny to economic legislation. See, e.g., Robert G. McCloskey, Economic Due Process and the Supreme Court: An Exhumation and Reburial, 1962 SUP. CT. REV. 34, 59-62. Now conservative scholars attack the New Deal Court's stance on economic regulation and propose a return to rigorous scrutiny of legislation affecting property rights. RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN 280-82 (1985). Left-liberal scholars, in turn, criticize the New Deal Court for not going far enough in redistributing property rights. See, e.g., J.M. Balkan, The Footnote, 83 Nw. U. L. REV. 275, 310-13 (1989) (criticizing the 1937 Court for not man- dating government enactment of laws establishing economic equality among individuals). NORTH CAROLINA LAW REVIEW [Vol. 70 Lochner Court norms by picturing its rebellion as a restoration.5 A wel- ter of new narratives presently
Load more

Recommended publications
  • The Wages of Crying Wolf: a Comment on Roe V. Wade*
    The Wages of Crying Wolf: A Comment on Roe v. Wade* John Hart Ely** The interests of the mother and the fetus are opposed. On which side should the State throw its weight? The issue is volatile; and it is resolved by the moral code which an individual has.' In Roe v. Wade 2 decided January 22, 1973, the Supreme Court- Justice Blackmun speaking for everyone but Justices White and Rehn- quist3-held unconstitutional Texas's (and virtually every other state's4) criminal abortion statute. The broad outlines of its argument are not difficult to make out: 1. The right to privacy, though not explicitly mentioned in the Constitution, is protected by the Due Process Clause of the Four- teenth Amendment.r 2. This right "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."4 3. This right to an abortion is "fundamental" and can therefore be regulated only on the basis of a "compelling" state interest." 4. The state does have two "important and legitimate" interests here,8 the first in protecting maternal health, the second in protect- ing the life (or potential life9) of the fetus. 10 But neither can be counted "compelling" throughout the entire pregnancy: Each ma- tures with the unborn child. These interests are separate and distinct. Each grows in substan- * Copyright 0 1973 by John Hart Ely. Professor of Law, Yale Law School. 1. United States v. Vuitch, 402 U.S. 62, 80 (1971) (Douglas, J., dissenting in part). 2. 93 S. Ct. 705 (1973). 3. Were the dissents adequate, this comment would be unnecessary.
    [Show full text]
  • Back to the Future (Reviewing David Bernstein, Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform (2011)) William D
    Brooklyn Law School BrooklynWorks Faculty Scholarship Spring 2012 Back to the Future (reviewing David Bernstein, Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform (2011)) William D. Araiza Brooklyn Law School, [email protected] Follow this and additional works at: https://brooklynworks.brooklaw.edu/faculty Part of the Constitutional Law Commons, Courts Commons, Litigation Commons, and the Other Law Commons Recommended Citation 28 Const. Comment. 111 (2012-2013) This Book Review is brought to you for free and open access by BrooklynWorks. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of BrooklynWorks. Book Reviews BACK TO THE FUTURE REHABILITATING LOCHNER: DEFENDING INDIVIDUAL RIGHTS AGAINST PROGRESSIVE REFORM. By David Bernstein.' Chicago, University of Chicago Press. 2011. Pp. viii, 194. $45.00 (Cloth). William D. Araiza2 "If you think Roe' is right, why do you think Lochner4 is wrong?" Constitutional law professors love playing this card with students. We like to think it forces them to confront how their policy preferences influence their legal analysis. And it is a nice trick: Roe v. Wade' responds to many (though not all') students' policy intuitions about the desirability of a broad abortion right, while Lochner v. New York7 is often taught as the paradigmatic anti-canonical case, a dark stain on the Supreme Court in the tradition of Dred Scott v. Sanford' and Plessy v. Ferguson' (the 1. Foundation Professor of Law, George Mason University School of Law. 2. Professor of Law, Brooklyn Law School. The reviewer wishes to acknowledge the financial support provided by the Brooklyn Law School Dean's Summer Research Stipend Program.
    [Show full text]
  • Congress Before the Lochner Court
    CONGRESS BEFORE THE LOCHNER COURT * KEITH E. WHITTINGTON INTRODUCTION ................................................................................................ 821 I. THE REGIME PERSPECTIVE ON JUDICIAL REVIEW ............................... 824 II. JUDICIAL REVIEW OF FEDERAL STATUTES , 1890-1919 .......................829 III. INVALIDATING FEDERAL STATUTES .................................................... 835 IV. STRIKING DOWN IMPORTANT REPUBLICAN POLICIES ......................... 838 V. STRIKING DOWN IMPORTANT DEMOCRATIC POLICIES ........................ 845 VI. AND THE REST ..................................................................................... 850 CONCLUSION ................................................................................................... 855 INTRODUCTION The Lochner Court is remembered as one of the great activist Supreme Courts of U.S. history. During the Lochner era judicial review took on its modern character. Constitutional review of legislation by the Supreme Court became a routine feature of the American political system. Although judicial review itself had, of course, been known for a century, it was only with the Lochner Court that we found the need to develop a particular term to refer to the practice of the judiciary nullifying statutes. Though a variety of terms were floated by commentators of the time, including judicial supremacy, judicial veto, judicial nullification, and judicial paramountcy, “judicial review,” a term associated with the judicial supervision of the new administrative
    [Show full text]
  • New Judicial Federalism
    American University Law Review Volume 55 | Issue 2 Article 3 2005 The "New Judicial Federalism" Before its Time: A Comprehensive Review of Economic Substantive Due Process Under State Constitutional Law Since 1940 and the Reasons for its Recent Decline Anthony B. Sanders Follow this and additional works at: http://digitalcommons.wcl.american.edu/aulr Part of the Constitutional Law Commons Recommended Citation Sanders, Anthony B. “The "New Judicial Federalism" Before its Time: A Comprehensive Review of Economic Substantive Due Process Under State Constitutional Law Since 1940 and the Reasons for its Recent Decline.” American University Law Review 55, no.2 (December 2005): 457-535. This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University Law Review by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. The "New Judicial Federalism" Before its Time: A Comprehensive Review of Economic Substantive Due Process Under State Constitutional Law Since 1940 and the Reasons for its Recent Decline Abstract The ominc g of the New Deal may have spelled the end of the Lochner era in the federal courts, but in the state courts Lochner's doctrine of economic substantive due process lives on. Since the New Deal, courts in almost every state have rebuffed the United States Supreme Court and have interpreted their own state constitutions' due process clauses to provide substantive protections to economic liberties.
    [Show full text]
  • The Lochner Era and the Demise of Roe V. Wade Jason A
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by University of Minnesota Law School University of Minnesota Law School Scholarship Repository Minnesota Law Review 2005 Meet Me at the (West Coast) Hotel: The Lochner Era and the Demise of Roe V. Wade Jason A. Adkins Follow this and additional works at: https://scholarship.law.umn.edu/mlr Part of the Law Commons Recommended Citation Adkins, Jason A., "Meet Me at the (West Coast) Hotel: The Lochner Era and the Demise of Roe V. Wade" (2005). Minnesota Law Review. 10. https://scholarship.law.umn.edu/mlr/10 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota Law Review collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. ADKINS_3FMT 12/22/2005 10:52:55 AM Note Meet Me at the (West Coast) Hotel: The Lochner Era and the Demise of Roe v. Wade Jason A. Adkins∗ “The life of the law has not been logic: it has been experience.” Oliver Wendell Holmes, Jr.1 On September 14, 2004, the United States Court of Ap- peals for the Fifth Circuit denied a motion to reopen the case of Roe v. Wade.2 Norma McCorvey, also known as Jane Roe,3 brought the motion after years defending abortion rights. Re- gretful of the effect that Roe has had on women and society,4 McCorvey assembled a massive amount of evidence, including 1,000 affidavits of women who testified that their abortions had a negative effect on their lives.5 McCorvey claimed that this in- ∗ J.D.
    [Show full text]
  • Lochner, Lawrence, and Liberty Joseph F
    Georgia State University Law Review Volume 27 Article 4 Issue 3 Spring 2011 3-1-2011 Lochner, Lawrence, and Liberty Joseph F. Morrissey Stetson University College of Law, [email protected] Follow this and additional works at: https://readingroom.law.gsu.edu/gsulr Part of the Civil Law Commons, Civil Rights and Discrimination Commons, Constitutional Law Commons, Family Law Commons, Law and Society Commons, Privacy Law Commons, and the Sexuality and the Law Commons Recommended Citation Joseph F. Morrissey, Lochner, Lawrence, and Liberty, 27 Ga. St. U. L. Rev. 609 (2011). Available at: https://readingroom.law.gsu.edu/gsulr/vol27/iss3/4 This Article is brought to you for free and open access by the Publications at Reading Room. It has been accepted for inclusion in Georgia State University Law Review by an authorized editor of Reading Room. For more information, please contact [email protected]. Morrissey: Lochner, Lawrence, and Liberty LOCHNER, LAWRENCE, AND LIBERTY Joseph F. Morrissey∗ “It is impossible for us to shut our eyes to the fact that many of the laws of this [regulatory] character, while passed under what is claimed to be the police power for the purpose of protecting the public health or welfare, are, in reality, passed [for] other motives.”1 INTRODUCTION Many of the states of the United States have statutes, constitutional provisions, and court decisions that deny individuals the right to have a family, specifically a spouse and children, based on sexual orientation. Advocates have made a wide variety of arguments attacking such restrictions.2 Scholars and litigants frequently argue that such acts violate constitutional guarantees of equal protection or invade a constitutional right to privacy.3 However, such arguments are often defeated by counter arguments presented with religious, moral, and even emotional fervor.
    [Show full text]
  • Some Varieties and Vicissitudes of Lochnerism
    SOME VARIETIES AND VICISSITUDES OF LOCHNERISM BARRY CUSHMAN ∗∗∗ INTRODUCTION ................................................................................................ 881 I. LOCHNER REVISIONISM BESIEGED ....................................................... 883 A. The Bernstein Critique .................................................................883 1. The Neutrality Principle: Manifestations and Persistence .....885 2. Neutrality and Property.......................................................... 896 a. Wage and Price Regulation ............................................. 896 b. Rate Regulation ...............................................................908 c. Other Deprivations of Property without Due Process..... 917 3. Neutrality and Liberty............................................................ 924 4. Taking Stock.......................................................................... 941 B. Robert Post and the Lifeworld Hypothesis .................................. 944 1. The Realm of the Normal...................................................... 944 2. Affectation with a Public Interest.......................................... 958 3. Taking Stock.......................................................................... 981 II. DATING LOCHNER ’S DEATH CERTIFICATE .......................................... 982 CONCLUSION ................................................................................................... 998 INTRODUCTION Until recently, a consensus appeared to be emerging among constitutional
    [Show full text]
  • Amanda Shanor, the New Lochner, 2016 Wisc. L. Rev
    THE NEW LOCHNER AMANDA SHANOR* Commercial interests are increasingly laying claim, often successfully, to First Amendment protections. Once the mainstay of political liberty, the First Amendment has emerged as a powerful deregulatory engine—and one with great implications for modern governance. This Article identifies that development as a growing constitutional conflict between the First Amendment and the modern administrative state and analyzes its origins and implications. The Article traces two opposing trends that have led to that constitutional conflict. A business-led social movement has mobilized to embed libertarian-leaning understandings of the First Amendment in constitutional jurisprudence. At the same time, administrative regimes have moved away from command-and-control regulation towards lighter-touch forms of governance that appear more speech-regulating. The stakes of this conflict are high. Because nearly all human action operates through communication or expression, the First Amendment possesses near total deregulatory potential. For that reason, I argue that the First Amendment operates as the fullest boundary line of constitutional state action. I identify the unique features of this modern form of constitutional deregulation—which I call the new Lochner—by interrogating the parallel drawn by a growing number of scholars and judges between recent First Amendment jurisprudence and Lochner v. New York’s liberty of contract. The Article explores linkages between theories of the First Amendment and administrative law, and it analyzes the implications of the First Amendment’s deregulatory turn for understandings of democratic legitimacy, choice, and constitutional change. I argue that the new Lochner must be rejected because advocates of its deregulatory vision are forwarding a concept of liberty that has no limiting principle and, if taken to its analytical conclusion, would render self-government impossible.
    [Show full text]
  • The Progressiveness of the Lochner Court
    Denver Law Review Volume 75 Issue 2 Article 5 January 2021 The Progressiveness of the Lochner Court Michael J. Phillips Follow this and additional works at: https://digitalcommons.du.edu/dlr Recommended Citation Michael J. Phillips, The Progressiveness of the Lochner Court, 75 Denv. U. L. Rev. 453 (1998). This Article is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Denver Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact [email protected],[email protected]. THE PROGRESSIVENESS OF THE LOCHNER COURT MICHAEL J. PHILLIPS* In 1913, the legal historian Charles Warren published an article en- titled "The Progressiveness of the United States Supreme Court."' Con- trary to charges that the Court was a reactionary obstacle to social legis- lation, Warren maintained that it had actually "been steady and consis- tent in upholding all State legislation of a progressive type."2 According to Warren, the Court had rejected over ninety-five percent of the Four- teenth Amendment due process and equal protection challenges it con- sidered during the years 1887 to 191 . Of the successful challenges, furthermore, the vast majority involved "private rights of property," and very few concerned "social justice" legislation.' This record, Warren concluded, showed "the responsiveness of the Court to the changing needs of the times," and revealed it as "a bulwark to the State police power, not a destroyer." Needless to say, Warren's view of the old Court's (or Lochner Court's)6 Fourteenth Amendment decisions has not been the dominant view.
    [Show full text]
  • Federalism and Phantom Economic Rights in NFIB V. Sibelius Matthew Lindsay University of Baltimore School of Law, [email protected]
    University of Baltimore Law ScholarWorks@University of Baltimore School of Law All Faculty Scholarship Faculty Scholarship Spring 2014 Federalism and Phantom Economic Rights in NFIB v. Sibelius Matthew Lindsay University of Baltimore School of Law, [email protected] Follow this and additional works at: http://scholarworks.law.ubalt.edu/all_fac Part of the Constitutional Law Commons, Supreme Court of the United States Commons, Taxation-Federal Commons, and the Tax Law Commons Recommended Citation Federalism and Phantom Economic Rights in NFIB v. Sibelius, 82 U. Cin. L. Rev. 687 (2014) This Article is brought to you for free and open access by the Faculty Scholarship at ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in All Faculty Scholarship by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. FEDERALISM AND PHANTOM ECONOMIC RIGHTS IN NFIB V. SEBELIUS Matthew J Lindsay * Few predicted that the constitutional fate of the Patient Protection and Affordable Care Act would turn on Congress' power to lay and collect taxes. Yet in NFm v. Sebelius, the Supreme Court upheld the centerpiece of the Act-the minimum coverage provision (MCP), commonly known as the "individual mandate "-as a tax. The unexpected basis of the Court's holding has deflected attention from what may prove to be the decision's more constitutionally consequential feature: that a majority of the Court agreed that Congress lacked authority under the Commerce Clause to penalize people who decline to purchase health insurance. Chief Justice Roberts and the four joint dissenters endorsed the novel limiting principle advanced by the Act's challengers, distinguishing between economic "activity," which Congress can regulate, and "inactivity, " which it cannot.
    [Show full text]
  • Tushnet's the New Constitutional Order
    Tushnet’s The New Constitutional Order Mark Tushnet defines Constitutional order (or Regime) in the following way: “A reasonably stable set of institutions through which a nation’s fundamental decisions are made over a sustained period, and the principles that guide these decisions(1). He notes, “These institutions and principles provide the structure within which ordinary political contention occurs, which is why I call them constitutional rather then merely political (2). The institutions are the Supreme Court, national political parties, Congress and Presidency. As in Taking the Constitution Away from the Courts, Mark argues here that constitutional principles articulated by the Supreme Court cannot be understood except in the context of institutional arrangements prevailing in the national government’s other branches. 1. Mark also notes that the new constitutional order, if it is a new constitutional order, has the following qualities: Aspiration to achieve justice through law is far more chastened than in New Deal Great Society Regime or constitutional order. 2. Statutes and constitutional doctrines establish conditions within which individuals and corporations seek their own ends, which for some is to achieve justice. 3. At any moment we can observe a dominant set of institutions and principles, some residues of a prior regime, and some hints of what might be the institutions and principles that may animate a succeeding one. If, as I argue in the enclosed paper, constitutional orders are gradually constructed and transformed, than we need, as part of the analysis of constitutional change and orders. an understanding of the “bottom up” process of construction by the Supreme Court through which polity and rights principles in a regime are tested, by analogy, through their application in the world outside the Court.
    [Show full text]
  • The Untold History of Substantive Due Process and the Idea of Fundamental Rights
    A Tale of Two Lochners: The Untold History of Substantive Due Process and the Idea of Fundamental Rights Victoria F. Nourset To say that the Supreme Court's decision in Lochner v. New York, is infamous is an understatement. Scholars remember Lochner for its strong right to contract and laissez-faire ideals-at least that is the conventional account of the case. Whether one concludes that Lochner leads to the judicial activism of Roe v. Wade, or foreshadows strong property rights, 2 the standard account depends upon an important assumption: that the Lochner era's conception of fundamental rights parallels that of today.3 From that assumption, it appears to follow that Lochner symbolizes the grave political dangers of substantive due Copyright © 2009 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. t L.Q.C. Lamar Professor of Law, Emory University School of Law; Burrus-Bascom Professor of Law, University of Wisconsin Law School. This paper was presented at colloquia at Emory University School of Law and the University of Wisconsin Law School in 2008; it was also the basis of a paper presented at the 2009 Association of American Law Schools (AALS) "New Legal Realism" panel, authored with Greg Shaffer, Varieties of New Legal Realism, 95 CORNELL L. REV. (forthcoming Nov. 2009) (manuscript on file with author). Special thanks to those at the Emory University Law School who commented on this paper, including Michael Perry, Martha Fineman, Robert Schapiro, Bill Buzbee, Morgan Cloud, Tom Arthur, Ani Satz, Liza Vertinsky and many others; thanks as well to those at the University of Wisconsin Law School who engaged with the paper's focus on new legal realism, including Stewart Macaulay, Beth Mertz, Heinz Klug, Brad Snyder, Andrew Coan, David Schwartz, and many others.
    [Show full text]