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Introduction, Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform

TL;DR: Bernstein this paper argues that the history of the Lochner line of cases is inaccurate, unfair, and anachronistic, and that Lochner should be removed from the anti-canon and treated like a normal, albeit controversial, case.
Abstract: This paper is the Introduction to David E. Bernstein, Rehabilitating Lochner: Defending Individual Rights against Progressive Reform (University of Chicago Press 2011), which will be officially released in May. The Introduction makes the following points, which are elaborated upon and defended in the body of the book. The standard account of the rise, fall, and influence of the liberty of contract doctrine is inaccurate, unfair, and anachronistic. Lochner has been treated as a unique example of constitutional pathology to serve the felt rhetorical needs of advocates for various theories of constitutional law, not because the decision itself was so extraordinary, its consequences so bad, or its anti-statist presumptions so clearly expelled from modern constitutional law. The liberty of contract doctrine was grounded in precedent and the venerable natural rights tradition. Progressive jurists who opposed liberty of contract had an extreme pro-government ideology, and typically opposed any robust constitutional protection of individual or minority rights. The Supreme Court’s liberty of contract advocates, by contrast, were sufficiently committed to the notion of inherent limits on government power and a limited police power that they voted for liberal results across a wide range of individual and civil rights cases. 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. Many post-New Deal liberal developments in Fourteenth Amendment jurisprudence can trace their origins to Lochner and its progeny. More generally, modern Fourteenth Amendment jurisprudence owes at least as much to the liberty of contract proponents’ libertarian values as to its pro-regulation Progressive opponents. The history of the liberty of contract doctrine should be assessed more objectively and in line with modern sensibilities, and Lochner should be removed from the anti-canon and treated like a normal, albeit controversial, case.
Citations
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Dissertation
01 Jan 2013
Abstract: Title of Dissertation: WORK UNDER DEMOCRACY: LABOR, GENDER AND ARENDTIAN CITIZENSHIP Alison Kathryn Staudinger, Doctor of Philosophy, 2013 Dissertation Directed by: Stephen Elkin, Professor Emeritus Government & Politics In the interest of promoting a co-constitutive theory of democratic citizenship, this dissertation explores three questions. I ask how work is defined and how this definition creates a hierarchy of types of work, which then leads to my second question, which is how definitions of work or what is not work are carried over into the public space of politics and citizenship, such that even legal citizens may be marginalized by the type of work that they do. I first critique democratic theory, particularly as centered on the idea of the public sphere, for failing to think about work, especially the labor that is required to build these political spaces. I then show how the contemporary economy challenges the ability of citizens to engage in political work because it produces conditions of precarious labor, ubiquitous work, the depoliticization of work itself, and incompatibility of wage labor and family life. I use two historical case studies to explore how groups have claimed collective rights housed in the substantive needs of communities when asserting the validity of their work for citizenship. I look to the Articles of Confederation and Daniel Shays for an example focused on waged labor, and then the temperance and Antitemperance movements for a consideration of gendered reproductive labor. I then address my third question, which is whether it is possible to promote the political work of coconstituting a shared public world without also denigrating the labor, particularly care labor, that is supportive of this project. I claim it is possible, with the aid of Hannah Arendt’s understanding of the complex interrelations between action, work and labor and locating of citizenship in the work of world building. I argue for the support of this conception of work and agnostic institutionalism, despite the challenges of the contemporary economy, by advocating for a coalition-based democratic politics aimed at supporting the compatibility of work and family for people who do all sorts of work. WORK UNDER DEMOCRACY: LABOR, GENDER AND ARENDTIAN CITIZENSHIP

62 citations

Posted Content
TL;DR: In this article, the role of originalism in constitutional interpretation is discussed and a recent article in the Columbia Law Review by University of Chicago Law Professor Will Baude called "Inclusive Originalism" is discussed.
Abstract: This essay discusses the role (or lack thereof) originalism plays in constitutional interpretation and critiques a recent article in the Columbia Law Review by University of Chicago Law Professor Will Baude titled "Inclusive Originalism." The thesis of the essay is that Baude's "inclusive originalism" specifically and "New Originalism" more broadly, either inaccurately describe constitutional decision-making by mislabeling non-originalist decisions as originalist, or define originalism in a way that is indistinguishable from non-originalist methods. Either way, Professor Baude and other New Originalists vastly overstate the importance of original meaning to constitutional law. I suggest at the end of this piece that they do so largely to avoid the realist critique that values, not text or history, drive Supreme Court decisions.

31 citations

01 Jan 2016
TL;DR: In the United States, citizenship as a theory has been constantly subject to contestation and disagreement as discussed by the authors, and the state plays a key role in the regulation and definition of citizenship.
Abstract: In the United States, citizenship as a theory has been constantly subject to contestation and disagreement. However, because recognition by a political institution is necessarily prior to any more substantive notion of citizenship, the state plays a key role in the regulation and definition of citizenship. Research in American Political Development (APD) suggests that political institutions and ideas often conflict, and define state institutions as constantly in flux and constantly developing (rather than in equilibrium) as different ideas and governing authority vie for permanence and durability within the institutional structure. Scholars of APD have pointed out that institutional structure allows for endogenous development as political entrepreneurs and social movements exploit the frictions created by institutional misalignments. Ideational development in the polity marks a shift in authority, but because the state is so fragmented, old ideas never die. In light of these theoretical characterizations of the relationship among institutions, ideas, and entrepreneurial actors, this thesis examines citizenship as an idea during and after Reconstruction (1863-1876). This thesis suggests that the contestation over the meaning and content of citizenship status between the Republican-led Congress, the president, state governments, social movements like the KKK, and the judiciary that took place during Reconstruction not only leads to an endogenous explanation for its failure, but also sheds light on how the fragmented state leads to a fragmented and inevitably unsettled definition of U.S. citizenship.

13 citations

Posted Content
TL;DR: The authors examines the development of regulation in the US from the 19th century up to the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) in 2010, from both a political and economic perspective.
Abstract: The history of regulation in America is as old as the republic itself. Since colonial times, Americans have struggled with the conflict between the desire for individual freedom and economic growth, and the need for rules and structure in a civil society. The evolution of the United States from a largely agrarian, libertarian society to one with strong industrial and consumer components that are regulated by the federal government has been greatly influenced by Progressive ideas, not only in financial services but in all aspects of economic life. The swing of public policy from periods of strict regulation to eras of greater permissiveness has enormous implications for economic growth. This paper examines the development of regulation in the US from the 19th century up to the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) in 2010, from both a political and economic perspective.

8 citations

Posted Content
TL;DR: Holmes's canonization began with reformers who appreciated his "modernist epistemology" and that Holmes and Brandeis achieved the status of professional and cultural icons in the decade of the 1930s as discussed by the authors.
Abstract: Justice Oliver Wendell Holmes Jr. became the first modern judge to attain iconic status. G. Edward White, the preeminent Holmes scholar of his generation, has argued that Holmes's canonization began with the "dramatic upsurge in the amount of commentary" in the late 1920s by reformers who appreciated his "modernist epistemology" and that Holmes and Brandeis achieved "the status of professional and cultural icons in the decade of the 1930s." This Article argues that Holmes's canonization began a decade earlier because of his association with a group of young progressives at the House of the Truth. During the 1910s, Felix Frankfurter, Walter Lippmann, and other progressives turned a Dupont Circle rowhouse into a salon, invited Washington establishment figures to frequent dinner and cocktail parties, and adopted Holmes as the House's hero. They canonized Holmes to attack the Court's anti-labor decisions. Holmes participated in his own canonization to further his ambitions of elite recognition. At age seventy, he was frustrated on the Court and considered retirement. He wrote for what Laurence Baum has described as a discrete judicial audience at the House of Truth. Holmes's canonization matters because it exemplifies canonization as political instrumentalism. The House wanted constitutional change; Holmes wanted recognition.

7 citations

References
More filters
Book
01 Jan 1985
TL;DR: In this article, a story of two pies and a Hobbesian man, a Lockean world, and the Integrity of Constitutional Text Takings and Torts is described.
Abstract: Philosophical Preliminaries A Tale of Two Pies Hobbesian Man, Lockean World The Integrity of Constitutional Text Takings Prima Facie Takings and Torts Partial Takings: The Unity of Ownership Possession and Use Rights of Disposition and Contract Taking from Many: Liability Rules, Regulations, and Taxes Justifications for Takings The Police Power: Ends The Police Power: Means Consent and Assumption of Risk Public Use and Just Compensation Public Use Explicit Compensation Implicit In-Kind Compensation Property and the Common Pool Regulation Taxation Transfer Payments and Welfare Rights Conclusion: Philosophical Implications Index of Cases General Index

564 citations

Dissertation
01 Jan 2013
Abstract: Title of Dissertation: WORK UNDER DEMOCRACY: LABOR, GENDER AND ARENDTIAN CITIZENSHIP Alison Kathryn Staudinger, Doctor of Philosophy, 2013 Dissertation Directed by: Stephen Elkin, Professor Emeritus Government & Politics In the interest of promoting a co-constitutive theory of democratic citizenship, this dissertation explores three questions. I ask how work is defined and how this definition creates a hierarchy of types of work, which then leads to my second question, which is how definitions of work or what is not work are carried over into the public space of politics and citizenship, such that even legal citizens may be marginalized by the type of work that they do. I first critique democratic theory, particularly as centered on the idea of the public sphere, for failing to think about work, especially the labor that is required to build these political spaces. I then show how the contemporary economy challenges the ability of citizens to engage in political work because it produces conditions of precarious labor, ubiquitous work, the depoliticization of work itself, and incompatibility of wage labor and family life. I use two historical case studies to explore how groups have claimed collective rights housed in the substantive needs of communities when asserting the validity of their work for citizenship. I look to the Articles of Confederation and Daniel Shays for an example focused on waged labor, and then the temperance and Antitemperance movements for a consideration of gendered reproductive labor. I then address my third question, which is whether it is possible to promote the political work of coconstituting a shared public world without also denigrating the labor, particularly care labor, that is supportive of this project. I claim it is possible, with the aid of Hannah Arendt’s understanding of the complex interrelations between action, work and labor and locating of citizenship in the work of world building. I argue for the support of this conception of work and agnostic institutionalism, despite the challenges of the contemporary economy, by advocating for a coalition-based democratic politics aimed at supporting the compatibility of work and family for people who do all sorts of work. WORK UNDER DEMOCRACY: LABOR, GENDER AND ARENDTIAN CITIZENSHIP

62 citations

Book
Ken I. Kersch1
28 Mar 2019
TL;DR: Kersch as discussed by the authors explores the developmental and integrative nature of postwar constitutional conservatism, challenging conservatives and liberals alike to more clearly see and understand both themselves and their presumed political and constitutional opposition.
Abstract: Since the 1980s, a ritualized opposition in legal thought between a conservative 'originalism' and a liberal 'living constitutionalism' has obscured the aggressively contested tradition committed to, and mobilization of arguments for, constitutional restoration and redemption within the broader postwar American conservative movement. Conservatives and the Constitution is the first history of the political and intellectual trajectory of this foundational tradition and mobilization. By looking at the deep stories told either by identity groups or about what conservatives took to be flashpoint topics in the postwar period, Ken I. Kersch seeks to capture the developmental and integrative nature of postwar constitutional conservatism, challenging conservatives and liberals alike to more clearly see and understand both themselves and their presumed political and constitutional opposition. Conservatives and the Constitution makes a unique contribution to our understanding of modern American conservatism, and to the constitutional thought that has, in critical ways, informed and defined it.

47 citations

Journal ArticleDOI
TL;DR: This paper explored the origins of the tradition in constitutional law where by judges identify and extend special protections to a set of "preferred freedoms" and argued that American judges in the nineteenth century were in terested in constructing general protections for liberty broadly defined rather than special protections for a handful of particularly important liberties.
Abstract: In this article I explore the origins of the tradition in constitutional law where by judges identify and extend special protections to a set of "preferred freedoms." I argue that American judges in the nineteenth century were in terested in constructing general protections for liberty broadly defined rather than special protections for a handful of particularly important liberties. They accomplished this by allowing legislative interferences with liberty only when it could be shown that the legislation promoted certain judicially approved public purposes. This limit on legislative power survived until the turn of this century when, in response to industrialization, progressive reformers agitated for an expansion of government powers beyond the limits established in traditional police powers jurisprudence In the 1920s and 1930s, those justices who helped usher in the expansion of state power drew on their familiarity with American pragmatism and their experiences with totalitarianism to forge a new consti...

43 citations

Dissertation
18 Dec 2015
TL;DR: The conflict between the colonists and the Mother country is the same as the conflict between men and women in the present world as discussed by the authors, and we have to notice a radically libertarian bent of this Jeffersonian reactionary traditionalist concoction.
Abstract: Enlightenment constructions of Locke or from covenant theology, or anything of the sort. We have to notice a radically libertarian bent of this Jeffersonian reactionary traditionalist concoction. The conflict between the colonists and the Mother country is

39 citations