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Rehabilitating Lochner: Defending Individual Rights against Progressive Reform

23 Oct 2012-
TL;DR: Bernstein this article provides a compelling survey of the history and background of Lochner v. New York, which invalidated a state law limiting work hours and became the leading precedent contending that novel economic regulations were unconstitutional.
Abstract: In this timely reevaluation of an infamous Supreme Court decision, David E. Bernstein provides a compelling survey of the history and background of Lochner v. New York. This 1905 decision invalidated a state law limiting work hours and became the leading precedent contending that novel economic regulations were unconstitutional. Sure to be controversial, "Rehabilitating Lochner" argues that despite the decision's reputation, it was well-grounded in precedent - and that modern constitutional jurisprudence owes at least as much to the limited-government ideas of Lochner proponents as to the more expansive vision of its Progressive opponents. Tracing the influence of this decision through subsequent battles over segregation laws, sex discrimination, civil liberties, and more, "Rehabilitating Lochner" argues not only that the court acted reasonably in Lochner, but that Lochner and like-minded cases have been widely misunderstood and unfairly maligned ever since.
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

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

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

Journal ArticleDOI
TL;DR: It was the policy of the American Civil Liberties Union (ACLU) during the 1920s to contest only those obscenity regulations that were "relied upon to punish persons for their political views" as discussed by the authors.
Abstract: It was the policy of the American Civil Liberties Union (ACLU) during the 1920s to contest only those obscenity regulations that were “relied upon to punish persons for their political views.” So stated a 1928 ACLU bulletin, reiterating a position to which the organization had adhered since its formation in 1920. For the majority of the ACLU's executive board, “political views” encompassed the struggle for control of the government and the economy, but not of the body. The early ACLU was not interested in defending avant-garde culture, let alone sexual autonomy.

34 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

References
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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

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

Posted Content
Jack M. Balkin1
TL;DR: For example, the authors argues that the conventions determining what is a good or bad legal argument about the Constitution, what is plausible legal claim and what is off-the-wall, change over time in response to changing social, political, and historical conditions.
Abstract: Until quite recently Lochner v. New York and Plessy v. Ferguson were canonical examples of how courts should not decide constitutional questions - both were generally considered not only wrong, but wrong the day they were decided. Although Plessy remains anti-canonical in this sense, for an increasing number of legal thinkers, Lochner no longer does. This essay, written for the 100th anniversary of Lochner v. New York, explains why Lochner's canonical status has altered, and how changing views of Lochner are connected to (or driven by) contemporary theories of legitimate constitutional change. It also explores the connections between contemporary attitudes about Lochner and constitutional ethos - the stories that Americans tell each other about who we are, where we have come from, and what we stand for. In analyzing these questions, the essay employs an approach called constitutional historicism, which holds that the conventions determining what is a good or bad legal argument about the Constitution, what is a plausible legal claim and what is off-the-wall, change over time in response to changing social, political, and historical conditions. The essay concludes by considering to what extent constitutional historicism might help constitutional theory.

26 citations

Book
30 Nov 2000
TL;DR: The Conventional Wisdom An Overview of Lochner-Era Susbstantive Due Process What Motivated the Old Court? The Question of Unequal Bargaining Power The Originalist Challenge Summing Up and Looking Ahead Bibliography Index as mentioned in this paper
Abstract: Preface The Conventional Wisdom An Overview of Lochner-Era Susbstantive Due Process What Motivated the Old Court? The Question of Unequal Bargaining Power The Originalist Challenge Summing Up and Looking Ahead Bibliography Index

13 citations