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“It Will Be A New Lochner Era. We Mean That In A Good Way.”

[ 48 ] October 26, 2012 |

Oh. Goody:

That’s the limited scenario. Cato’s Pilon believes that replacing one liberal justice with a conservative could pave the way for a slow return to the Lochner Era — a pre-New Deal period when the Supreme Court invalidated minimum wage and child labor laws as unconstitutional.

“Yes, but not for a while,” the conservative scholar said. “Because there’s just too much to roll back. The court could find Social Security unconstitutional tomorrow, and that would be a good thing, but that would be suicidal for them because many people depend on it. We didn’t get into this mess overnight and we’re not going to get out of it overnight.”

Barnett — whose advocacy for smaller government has landed him in conflict with both liberals and conservatives — stresses that the conservative legal community’s goals are about principle and not a legislative agenda.

“I think that people who look at conservatives from the outside think this must be about a legislative agenda,” he said. “It would be a mistake to think that. We want to see the text of the Constitution interpreted to hold Congress to its enumerated powers.”

Yes, as a straightforward, technical legal question, it can be safely said that Article I of the Constitution enacted Mr. Robert Nozick’s Anarchy, State, and Utopia.

Of course, should the median vote of the Supreme Court shift to the right of Antonin Scalia, this would be entirely the fault of Senate Democrats, who if they wanted to could completely negate the appointment powers of the president with no negative consequences going forward. I mean, really, you think the Republicans would allow Obama get two Supreme Court justices confirmed? Please.

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  1. Murc says:

    I mean, really, you think the Republicans would allow Obama get two Supreme Court justices confirmed?

    Maybe I’m too cynical, but I actually think the only reason they DID allow this is because both nominations came up before the 2010 midterms and the teahadis couldn’t be assured of controlling the entire caucus; it would only take one line-crosser to defeat a filibuster. So they let everyone off the leash for Kagan and Sotomayor.

    The country has proven that it adapts itself to a new normal very, very rapidly. Witness the tolerance of our institutions for a level of unemployment that, a decade ago, would have prompted ‘the sky is falling’ alarms.

    If the Republicans were to just declare ‘sorry, if Obama wants to appoint his Commie-Nazi Socialist Muslim plants to the Supreme Court, he shouldn’t have lost his Senate supermajority’ things would get a bit hot for them in the media for a couple months, but then suddenly THAT would become the new normal. ‘Filibuster enters 10th Month’ becomes a one-line item on page A20, and not even ‘REPUBLICAN filibuster.’

    I’m aware of the traditional arguments for why high-profile nominations, like SC justices and Cabinet Officials, are different from lower-profile ones. But I’ve learned to just never underestimate Republicans disregard for traditional norms.

    • Scott Lemieux says:

      It’s possible. Perhaps there will be a time when GOP senators just serially reject Democratic Supreme Court nominees. But then we have the problem that dysfunctional government suits the GOP just fine; there’s no reason to think it’s desirable for Democrats to initiate this.

  2. rea says:

    “We want to see the text of the Constitution interpreted to hold Congress to its enumerated powers.”

    They plan on returning the Louisiana Purchase to France?

    • rea says:

      Let me add rant to snark. Jefferson and Madison on the one side, and Hamilton on the other side, at first disagreed about the effect of the spending clause. Hamilton saw it as an independent power to spend for the common defense and general welfare-Jefferson and Madison claimed that Congress could only spend pursuant to one of its enumerated powers.

      Then Jefferson got elected president, with Madison as his secretary of state. The opportunity to purchase Louisiana arose. And Jefferson and Madison Came to realize that their narrow view of the spending power led to an unworkable government. Taking the oportunity to purchase Louisiana was too important to miss. There was no enumerated power relevant to purchasing Louisiana. Therefore the spending power could not be limited to spending pursuant to an enumerated power.

      Now observe what this tells us about constitutional interpretation. If Madison and Hamilton disagree on what the Contitution means, how can the Constitution possibly be construed according to the original intent and understanding of the drafters? And instead, the meaning of the spending clause got settled by the necessities of practical government–the Constitution must be construed in a way that enables the government to do what needs to be done. The general welfare of the country requires Social Security–Social security is constitutional

    • DrDick says:

      I might be tempted to celebrate if they had to return Alaska to the Russians.

  3. Matt says:

    Nonsense like this makes me pine for the days when the GOP only wanted to roll back the ’60s. Now they’re pushing to roll back the entire goddamn TWENTIETH CENTURY…

  4. Wido Incognitus says:

    Considering that a lot of the Lochner era was less about a rigid interpretation of Article I applied to the federal government than an expansive interpretation of the 14th Amendment applied to the state governments, couldn’t he have come up with a better comparison if he is really concerned with limiting the powers of Congress? Maybe I’m just being a jerk about details. Also, I apologize again for trolling.

    • Erik Loomis says:

      He’s not actually concerned with limiting the powers of Congress. He’s concerned with concentrating money at the top of the social pyramid in ways that haven’t quite been as easy since 1905.

      • bobbyp says:

        If you have all the economic wealth, you can call that ‘scrap of paper’, and the ‘principles’ by which you interpret it, anything you want.

      • Murc says:

        I’m not familiar with Pilon, but this seems unfair to Barnett.

        Barnett is a crazy man, but his writings on non-economic topics indicate that he really DOES want to limit the powers of Congress and the powers of the federal government in general.

        He also, of course, wants to siphon wealth to the top of the social pyramid. (Either that or he’s so dumb he can’t see the logical outcome of his preferred form of government.) People are capable of wanting more than one thing.

        But not everything libertarian whackjobs want is a smokescreen or a lie. Assuming they’ve demonstrated a lack of mendacity, I usually take someone like, say, Radley Balko as telling the truth both when they say that the social safety and government spending are immoral in and of themselves, AND that they hate the police state.

        • dino says:

          You know what siphons money to the top? Entitlement programs that take from the young and relatively poor and give to the old and relatively wealthy.

          • Major Kong says:

            Oh for the good old days when the elderly just died of hypothermia like nature intended.

          • Murc says:

            I’m not sure the policy position you’re advocating for here, dino.

            Are you saying that the elderly don’t need social security and medicare? Because that’s pretty much provably false.

            You seem to be relying on the words ‘relatively’ to do a lot of work there. Yeah, the elderly as a class are relatively speaking wealthier than young people. But someone in their 70s who can comfortable make the mortgage and have a few bucks left over for creature comforts because of social security, while wealthier in relative terms than a struggling twentysomething, isn’t exactly living a parasitical existence.

  5. LeeEsq says:

    Well returning the Lochner era would be good for a certain, very small segment of American society.

  6. MikeJake says:

    So…taking authority over regulating our basic economic relations away from activist courts and vesting it in the legislature, where it belongs, is “liberal”?

  7. scott says:

    When I was in law school 20 years ago, “you’re Lochnerizing” was the classic and fatal put-down my law professors employed when some of my more conservative classmates rhapsodized about an era when the Constitution wouldn’t allow government to protect 10 year old kids in factories. It meant to convey the idea that misplaced nostalgia for the horse-and-buggy era was just that, sentimentality and not law. Now those same classmates are in the saddle, and their wet dreams are close to reality. WTF.

    • BigHank53 says:

      “Experience is a dear school, yet there are those that will have none other.”

      They might get the point when their kids emigrate so their children can be raised in a socialist hellhole instead what they’ve turned the US into: North Haiti.

  8. NonyNony says:

    The court could find Social Security unconstitutional tomorrow, and that would be a good thing, but that would be suicidal for them because many people depend on it.

    Jesus farking Christ – I would assume that a comment like that would come from the Onion.

    These people are impossible to parody. They seem to take Poe’s Law as a challenge.

  9. dino says:

    “The Lochner line of cases pioneered the protection of the right of women to compete with men for employment free from sex-based regulations; the right of African Americans to exercise liberty and property rights free from Jim Crow legislation; and civil liberties against the states ranging from freedom of expression to the right to choose a private school education for one’s children.”

    http://www.law.gmu.edu/assets/files/publications/working_papers/1117IntroductionRehabilitatingLochner.pdf

    • Murc says:

      Why not have both? How about all of those things AND a federal government that can force people to be paid a living wage and make it illegal to hire ten-year-olds to work on dangerous machinery?

      I’m natively sympathetic to a lot of pre-New Deal ideas about how the constitution should be interpreted, but this is just kind of dumb.

    • Timb says:

      By claiming the Federal govt has no role in ensuring equal rights, the Lochner era courts did NOT help Civil Rights. See Plessy, Dino.

      Further, all Lochner Courts did was codify the existing “might makes right” social structure

    • Joe says:

      Those who criticize the “Lochner Era” do so for various reasons & the author of that book was repeatedly clued in to this on his Volokh Conspiracy blog but kept on ignoring the fact.

      The concern is not that there is substantive liberty. Justice Harlan dissented from both Plessy and Lochner. The concern is that the USSC misconstrued the state interests that justified certain types of regulations. Meanwhile, a few cases aside, the justices of the era actually didn’t protect blacks, women, free expression et. al. that much.

      In fact, Lochner was an exception to the norm of the time (since changed) and “rights claims were common but rarely fatal” to regulation.

      http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2109659

    • “The Lochner line of cases pioneered the protection of the right of women to compete with men for employment free from sex-based regulations; the right of African Americans to exercise liberty and property rights free from Jim Crow legislation; and civil liberties against the states ranging from freedom of expression to the right to choose a private school education for one’s children.”

      Ah, is that way women spent were able to compete with men on equal footing, free from job discrimination, in 1903?

      Why African-Americans enjoyed protection from discrimination and Jim Crow in 1949?

      Yup, those Lochner-era decisions sure did destroy discriminatory laws. It’s such a shame that the great progress made to end Jim Crow came to a screeching halt in the middle of the 20th century.

      • Joe says:

        David Bernstein will cite a few outliers like a minimum wage law against women alone struck down partially (honestly by the writer, who supported the 19A) on equal protection grounds or one of the few victories for blacks like against a housing segregation law.

        Consistent libertarians were as prevalent then as they are now.

  10. Joe says:

    Barnett et. al. say the New Deal is this big horrible shift for liberty but David Bernstein (hey I have a book on Lochner! btw Holmes was a dick!) types will remind that the USSC upheld most of the laws. Right. Except for select cases, it was easier in many areas (especially speech, racial, etc.) to uphold many anti-liberty laws. Filibustered Obama pick Victoria Nourse wrote a good article on this.

  11. Green Caboose says:

    Reading this really emphasizes that while the wingnuts fantasize that Obama is a Manchurian candidate that has secret plans to destroy America (that for some reason he didn’t implement when he had 60 votes in the Senate but instead is waiting for his second term to do so) the reality is that the GOP leaders DO have secret plans for America that their voters would loudly veto if they were aware of them.

    I mean, how many Romney voters under 55 realize that their guaranteed retirement medical insurance that they’ve been paying taxes for for ~35 years will end if the GOP gets the House, White House, and 50 votes in the Senate? How many Romney voters have no medical insurance or insurance-in-name-only from employers like Walmart and realize that if Obamacare survives the next two years they’ll have insurance for their families?

    How many Romney voters realize that the code words “less government regulation” means equal pay protections, child labor laws, the right to receive compensation if injured on the job, the right to a safe work environment, etc.?

    How many Romney voters realize that when Ryan talks about replacing Social Security with an investment plan that this is the first step to ending it?

    Not many Romney voters do. This is why politics has devolved into two sides shouting different “facts” and the media simply reporting what they said. The GOP often talks about wanting to have a debate about their different visions for America, but when the debate starts they won’t be honest about what they actually plan to do.

    • Davis X. o says:

      …the GOP leaders DO have secret plans for America that their voters would loudly veto if they were aware of them.

      They’re not secret, and their voters are embracing them.

      “OK, But shoot me last” seems to be an effective domestic-policy plaform model.

  12. El Cid says:

    Article 1 of the Constitution is completely un-Constitutional and against the will of the Founding Fathers, because it allows Congress to pass laws which weren’t in the Constitution in the first place.

    Congress should only pass laws which quote the Constitution, maybe occasionally adding an exclamation point if needed.

  13. [...] “It Will Be A New Lochner Era. We Mean That In A Good Way.”: Scott Lemieux This entry was posted in Potpourri. Bookmark the permalink. ← Reader Feeder Bits for (Thu. 25-Oct-12 1730) [...]

  14. Mrs Tilton says:

    Barnett … stresses that the conservative legal community’s goals are about principle….

    “… We want to see the text of the Constitution interpreted to hold Congress to its enumerated powers”.

    So, Randy Barnett has claimed conservative? Can’t say I’m surprised, except at his apparent openness about it these days. I wonder, is Cartoon Parody Barnett (a/k/a Glenn Reynolds) still denying that he is a conservative?

    In response to a mail in which I (sincerely) commended him for some good he had done, Barnett wrote to me that we have a lot more in common than I think. He was wrong.

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