Jean wrote this morning. I haven’t gotten her permission to post her astute comments. But I will mention a couple of points: Jean is right that it’s pretty misleading to lump LOCHNER with ROE and DRED SCOTT as substantive due process evildoing. The issue in LOCHNER is something over which reasonable people can disagree, and the result of LOCHNER didn’t really screw up the country. Still, we can’t entirely forget the three opinions share the same form, despite Blackmun’s lame attempt to say otherwise.
Jean (who spent the week with her grandsons) echoed Sara in the thread that SOCIAL CONSERVATISM can’t really about longing for a time when women generally didn’t work—certainly not the time described by Tocqueville when women we’re pretty much cloistered in the home. SOCIAL CONSERVATISM, though, can gently support the choice of some moms not to work through tax policy and so forth. To flesh this out more would be to enter Pete’s domain.
The reasonable alternative to the opinion of the Court in LOCHNER is not Holmes’ “differing views” opinion (remember, at the time, only Holmes agree with Holmes), but Harlan’s reasonable basis dissent. The Constitutional is far from neutral on the character of the economy. But it surely gives states leeway when it comes to minimum wage and maximum hours laws. Just because (as you can learn in ECON 101) minimum wage laws are counterproductive, doesn’t mean they’re unconstitutional. Libertarian books that say that law in question in LOCHNER was bad policy don’t really show it was unconstitutional policy. Reasonable basis, of course, is a hard standard to implement in practice, but so are all ‘dem standards.
So let me put forward this controversial proposition: The issue in LOCHNER is not one that should have been resolved 5-4 by the Court, and the same goes for ObamaCare. ObamaCare, of course, is much more evil that telling bakers they can’t work more than 60 hours a week. Divide up into small groups . . .
Jean referred to Hadley Arkes’ NATURAL LAW defense of LOCHNER. Hadley, of course, is in the camp which says LOCHNER was rightly decided and ROE did fundamental violence to who we are by nature. That, of course, is a very reasonable position. But if Hadley were on the Court, he’d push for pro-life judicial activism too. The NATURAL LAW, of course, would be on his side. Still: The problem I see with NATURAL LAW JURISPRUDENCE is that expects to much from JUDGES (who are mere LAWYERS), and even Thomas Aquinas would say that the particulars with which NLJ would deal produce more uncertainty in reasonable minds than it would seem at first. It produces, in my view, a much more expansive judiciary than the Founders had in mind, but, not only that, it provides ammunition for our enemies when they win elections and especially control our law schools with their Rawlsianism and so forth. Most of all, AK THINKS he’s engaging in NLJ, although he doesn’t know what he’s talking about, really. I would have our judges stick more closely to the text of the Constitution and be genuinely “reasonable basis” (give the benefit of the doubt) to all the laws passed by our legislatures.