Friday, October 21, 2011

Lochner: What You "Know" Probably Isn't True

The Lochner decision is despised by the Progressives--which is why it's vilified, despite the fact that it's just common sense.

...Nor was Lochner controversial at the time it was decided. “Of the eight law review articles to comment on Lochner shortly after it was released, seven supported it, some vigorously,” Bernstein explains. “Also contrary to historical myth, newspaper editorial commentary on Lochner was generally supportive.”

That general opinion would change later, when progressives and elite lawyers enamored of government power found the notion of “liberty of contract”—the central finding in Lochner—an unwelcome obstacle to their practical goals. To the progressives, “abstract legal freedom” needed to give way to considerations of “social policy,” and limitations on government power in the name of constitutional freedoms were old-fashioned...

(Precisely the sort of language used by Herb Croly, by the way.)

It is ironic that Lochner's logic also supported blacks and women:

...In methodology and approach, Lochner fits comfortably with all sorts of more celebrated cases, from Dean Milk v. Madison in 1951 (involving protectionism) to Griswold v. Connecticut in 1965 (the privacy ruling later used against Robert Bork in his ugly confirmation hearing).

Elsewhere, as Bernstein recounts, advocates for African-Americans’ and women’s rights often made use of freedom of contract as a way to strike down laws limiting those groups’ economic freedom. Freedom of contract was a powerful weapon for dissolving the legal rules that, unsurprisingly, tended to work against those excluded from legislative power. Economic freedom, far from being a tool of the big bosses, was an important way for the underdogs to gain the freedom to compete, and to undermine the legal support that was essential to making Jim Crow and related laws work.

So the Progressives preferred the Klan, directly or indirectly.  Fits right in:  they elected them regularly in the South.


jimspice said...

While the people who elected Klansmen may have been Democrats, by no stretch of the imagination were they progressives.

Anonymous said...

And if you go to Bernstein's site, read the comments section. A number of cogent rebuttals.

Remember, Bernstein has his thesis--HIS interpretation. It is NOT the gospel.


Anonymous said...

Oh come on you two, what could be more progressive than democrats progressing from slave masters on the plantations to slave masters in government.

At least your not as dangerous to them now, unless you count wiping out their ability to get ahead by forcing them into failing schools.

Hell, that's progress. Right?


Anonymous said...

I thought only Democrats played the race card. Apparently I was mistaken.


Anonymous said...

I am not saying your racist Zero. It is entirely possible that out of millions of democrats there are a few that are not. I am willing to give you the benefit of the doubt.

Anonymous said...

John Wilkes Booth was a progessive!

Buy more ammo!