Lochner and Liberty

Dissecting the Supreme Court case that unites the new regulatory czar and his conservative critics

Last week, the Senate voted 57-40 to confirm Harvard and University of Chicago law professor Cass Sunstein as the new head of the Office of Information and Regulatory Affairs. This narrow vote brought an end to months of overheated and frequently misguided attacks on the would-be "regulatory czar," including a sensationalistic website operated by the American Conservative Union that falsely painted Sunstein as an out-of-control radical.

Too busy making outlandish claims about his positions on gun control and radio censorship, Sunstein's conservative critics have ignored one of the biggest problems that his ideas pose to limited constitutional government. Sunstein is one of the most influential modern critics of Lochner v. New York (1905), perhaps the Supreme Court's most famous decision defending economic liberty. So why aren't conservatives going after Sunstein for his opposition to this case? Because many of them don't like Lochner either.

At issue in the case was a provision capping working hours in New York's 1895 Bakeshop Act, which banned bakery employees from working more than 10 hours per day or 60 hours per week. In its 5-4 decision, the Court nullified this provision for violating the liberty of contract secured by the Due Process Clause of the 14th Amendment.

In his 1987 Columbia Law Review article "Lochner's Legacy," which is one of the most cited articles on the case from the last two decades, Sunstein criticized Lochner for preventing the state from using its lawful power "to help those unable to protect themselves in the marketplace." Similarly, in his 1998 book The Partial Constitution, Sunstein asserted that the Lochner Court "made the system of 'laissez faire' into a constitutional requirement."

But compare those claims with the actual text of the Lochner decision. As Justice Rufus Peckham wrote for the majority, while New York certainly possessed the power to enact valid health and safety regulations, the maximum hours provision of the Bakeshop Act "is not, within any fair meaning of the term, a health law." Not only was the baking trade "not dangerous in any degree to morals, or in any real and substantial degree to the health of the employee," the limit on working hours involved "neither the safety, the morals, nor the welfare, of the public." In other words, "clean and wholesome bread does not depend on whether the baker works but ten hours per day or only sixty hours a week."

Indeed, as Peckham carefully explained, those sections of the Bakeshop Act regulating "proper washrooms and closets," the height of ceilings, floor conditions, and "proper drainage, plumbing, and painting," remained perfectly valid health and safety regulations; only the hours provision was struck down. Moreover, just three years later, in Muller v. Oregon, the Supreme Court unanimously upheld a state law limiting female laundry employees from working more than 10 hours a day. So much for Lochner making "'laissez faire' into a constitutional requirement."

In fact, as George Mason University legal scholar David Bernstein has thoroughly documented, the mainstream version of the Lochner story, which pits evil bosses against viciously exploited workers, bears zero resemblance to the historical evidence. The real origins of the Bakeshop Act lie in an economic conflict between unionized New York bakers, who labored in large shops, and their non-unionized, mostly immigrant competitors, who tended to work longer hours in small, old-fashioned bakeries. As Bernstein observed, "a ten-hour day law would not only aid those unionized workers who had not successfully demanded that their hours be reduced, but would also help reduce competition from nonunionized workers."

To put it another way, Lochner v. New York secured a fundamental right against arbitrary government interference while undercutting an act of naked economic protectionism. Yet Sunstein's right-wing foes haven't mentioned the case in their opposition to his appointment. Why? Perhaps it's because prominent leaders of the conservative legal movement also dislike Lochner.

In his 1991 bestseller The Tempting of America, for example, former federal appeals court Judge Robert Bork denounced Lochner as "the symbol, indeed the quintessence, of judicial usurpation of power," linking it to the Court's later rulings securing privacy and abortion rights under the 14th Amendment. Supreme Court Justice Antonin Scalia routinely attacks the Court's abortion and gay rights rulings for their Lochnerian judicial activism. And during his 2005 Senate confirmation hearings, future Chief Justice John Roberts declared, "You go to a case like the Lochner case, you can read that opinion today and it's quite clear that they're not interpreting the law, they're making the law."

These judicial conservatives aren't necessarily worried about restricting state regulatory power, but they are very leery of the Court protecting unenumerated rights—be it liberty of contract or privacy. Which matches nicely with Sunstein's claim that part of the problem with the Lochner Court was its "aggressiveness" and "judicial intrusions into the democratic process."

Yet both sides ignore the Ninth Amendment, which reads, "the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Which means we possess more rights than any document could ever list, including the right to earn an honest living free from arbitrary and unnecessary regulation. They also both ignore the Privileges or Immunities Clause of the 14th Amendment, which was specifically designed to protect both civil rights and economic liberties against predatory state governments.

That's the real problem with Cass Sunstein—and with the conservatives who share his hostility towards Lochner. They don't give economic liberty its constitutional due.

Damon W. Root is an associate editor at Reason magazine.

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  • John Tagliaferro||

    New at Reason: Damon Root on the Real Problem with "Regulatory Czar" Cass Sunstein

    That the position should not exist?

  • T||

    What? Cass Sunstein isn't in favor of economic liberty? Of course he is, as long as there is a default liberty set correctly so that people not as smart as Cass Sunstein won't make the wrong market choices.

  • ||

    He looks very punchable.

  • Tomcat1066||

    What a tool.

    Of course, Obama wanted me to say that.

  • RJ Moeller||

    Hey I found your blog today linked from Human Events. I really like what I see. I'll be sure to regularly stop in.

    I am a 26 year old grad student from Chicago and I have a humble little blog of my own (A Voice in the Wilderness) and here's my latest piece:

    rjmoeller.com...et-it-obama/

    Keep up the good work. Thanks and God bless!
    -RJM

  • John Tagliaferro||

    Obama wants me to duel Sunstein.

  • John Tagliaferro||

    Obama wants me to ask why this story is being ignored.

  • T||

    Obama wants me to duel Sunstein.

    Chainsaws at 2 paces, John. Hold out for that or no deal.

  • Barry Loberfeld||

    This isn't the only case of where left and right unite against the Constitution when it's a block to their legislation:

    To those of us suffering under the delusion that the Constitution was supposed to "secure the Blessings of Liberty," [Justice Stephen] Breyer reveals that its purpose was "to create a framework for democratic government -- a government that, while protecting basic individual liberties, permits citizens to govern themselves." But how can it protect "individual liberties" when such protection is precisely what doesn't allow "citizens to govern themselves"? Or is "basic" actually Breyerspeak for as few as possible?

    At this point a certain feeling may be creeping over many, an eerie kind of déjà vu. It grows only stronger when [E.J.] Dionne reclaims the mic. "Breyer's argument," he explains, "leads not to judicial activism but to judicial humility. He insists that courts take care to figure out what the people's representatives intended when they passed laws. You might say that justices should not behave like imperious English professors who insist they can interpret the true meaning of words better than those who actually wrote them." Now that tore away the disguise, didn't it? This isn't the "living document"/"evolving Constitution" rhetoric that the Left's been blaring all these years. The exalting of majoritarian democracy over individual liberty, the insistence that this view reflects the "intentions" of the Framers of the Constitution -- who can mistake it? Who can still not see that behind the meek figure of Stephen Breyer looms -- as his alter ego -- the monstrous presence ...

    From THE STRANGE CASE OF JUSTICE BREYER AND MR. B.

  • John Tagliaferro||

    Chainsaws at 2 paces, John. Hold out for that or no deal.

    Most excellent! I studied the art of chainsaw dueling by watching that OLN lumberjack competition every year for . . . a long time. Combine that with my love for Errol Flynn movies and the smart money is on me!

  • T||

    Most excellent! I studied the art of chainsaw dueling by watching that OLN lumberjack competition every year for . . . a long time. Combine that with my love for Errol Flynn movies and the smart money is on me!

    Get it on pay-per-view and you'll make a mint.

  • John Tagliaferro||

    Get it on pay-per-view and you'll make a mint.

    Good idea! And I shall order my minions in the Right Wing Noise Machine to create a buzz. Millions of consumer zombies will pay to watch. My army of accountants and lawyers are to begin immediatly to apply for federal grants. Obama wants me to tell you that this will stimulate the economy.

  • John Tagliaferro||

    Obama wants me to tell you that Irving Kristol has died.

  • ¢||

    The RealProblem with Cass Sunstein is that punchable conservatives and libertarians are afraid to oppose him on any grounds at all, or to be seen joining in any opposition to him, because they fear being branded "anti-intellectual" by other punchables.

  • Jonathan Parker ||

    Obama wants you to bail me out.

  • John Tagliaferro||

    ¢,

    I want to challange him on the field of battle. I need to go shopping for a chainsaw. Laterz!

  • ||

  • 24AheadDotCom||

    OT: I haven't even watched this and I know it's hilarious. Maybe Reason could invite her to one of their roundtable discussions.

  • Xeones||

    Shut the fuck up, LoneWacko.

  • Warty||

    Tag team shut the fuck up, Lonewacko.

  • Ben Kenobi||

    Where is all this "Obama wants me to..." from?

  • Xeones||

    Obama wants you to dig around in some of today's earlier threads, Ben.

  • ||

    STFU, RJ Moeller!

    Just breaking him in a little. ;-)

  • Attorney||

    OK, quiet down, fellas.

    This is good little article. I didn't realize that Bork was anti-Lochner. In any case, the attention that legal types give to Lochner is a little surreal, because it hasn't represented the law since the New Deal. Lochner is the road not taken. So, what we should be asking is not whether Lochner was rightly or wrongly decided, but whether the Court was right or wrong to abandon Lochner.

  • Fast Ed||

    This commentary makes no sense. What does Lockner have to do with Cass Sunstein. Is Root suggesting that conservatives attack him for his opposition to Lochner?

    I agree with the Lochner decision. Unfortunately, the case carries no weight. If it did, we would no longer have OSHA, NLRB and a myriad of other intrusive government laws and agencies.

    When I was in Law School, Lochner was essentially mocked, ridiculed and dismissed.

    So back to the article here, Sunstein opposes Lochner, some conservatives (Bork, Roberts) oppose Lochner. Therefore, let's write an article attacking conservatives. Makes no sense.

    BTW, had Roberts come out in favor of Lochner, he would have never been confirmed. And it would not be the "conservatives" would have opposed him.

  • ||

    Obama want me to be the porno and marijuana testing Czar.

  • ||

    Lochner was essentially mocked, ridiculed and dismissed.

    So was Wicard v. Filburn.... but hey, it was the justification for Raich. So maybe there is hope.

    Warty, my house at 7:00. You bring the lube. Sugar, you bring the camera.

  • ||

    He looks like Ted from "Scrubs," with a little less flop-sweat and a slightly different haircut.

    Ted is also very punchable, as "Scrubs" fans will attest.

  • hmm||

    I had a steak and kicked the kitten to celebrate his appointment.

  • Brian Lockwood||

    He looks like Ted from "Scrubs," with a little less flop-sweat and a slightly different haircut.

    Ted is also very punchable, as "Scrubs" fans will attest.


    Anybody seen the commercial with Scrubs and Black Scrubs regarding health care? I just saw it for the first time yesterday. I never liked the show before, but now I have a real reason to not like it.

  • ||

    Hmmm ... I haven't seen that commercial; now I'll be looking for it.

    I gather that, by "scrubs" and "black scrubs" you mean actors Zach Braff ("J.D." and Donald Faison ("Turk"), respectively.

    To be clear, just in case anyone thought I was talking about either of those guys in my earlier comment, I was actually comparing Sunstein to "Ted," the legal counsel for Sacred Heart Hospital, played by the great Sam Lloyd.

  • Attorney||

    To be clear, just in case anyone thought I was talking about either of those guys in my earlier comment, I was actually comparing Sunstein to "Ted," the legal counsel for Sacred Heart Hospital, played by the great Sam Lloyd.

    Formerly memorable as "Ricky" on two Seinfeld episodes.

    "I've never seen a beautiful lady reading 'the
    Guide' so far away from a TV. You must really like television."

  • ||

    Obama wants me to punch "Ted" in the face.

  • ||

    Sunstein asserted that the Lochner Court "made the system of 'laissez faire' into a constitutional requirement."

    This is the exact way it's taught in Law School. The later case that overturns Lochner, West Coast Hotel v. Parrish, was used to say something like that...that the supreme court was enforcing some kind of economic philosophy on the people in Lochner, and that's Congress's job. Or something.

  • ||

    Sunstein asserted that the Lochner Court "made the system of 'laissez faire' into a constitutional requirement."



    Odd....my reading of the USC all these years is that the document itself "made the system of 'laissez faire' into a constitutional requirement".

  • ||

    I guess all those "Congress shall make no law" references were just boilerplate. Oh, well.

  • hmm||

    Who the fuck names their kid Cass? Is it short for castration, or casidy?

  • Attorney||

    This is the exact way it's taught in Law School. The later case that overturns Lochner, West Coast Hotel v. Parrish, was used to say something like that...that the supreme court was enforcing some kind of economic philosophy on the people in Lochner, and that's Congress's job. Or something.

    I had forgotten until just now that West Coast Hotel v. Parrish was a 5-4 decision. Switch in time that saved nine, and all that. What would have happened if the majority of justices had stood together, defying Roosevelt and his court-packing threat?

  • Craig||

    Isn't it well past time to name a czar czar? With all these czars running around, someone needs to keep tabs on them.

  • Brian Lockwood||

    I gather that, by "scrubs" and "black scrubs" you mean actors Zach Braff ("J.D." and Donald Faison ("Turk"), respectively.

    That terminology was taken from Family Guy. I felt it was more insulting to the show and the actors so I decided to use it.

  • ||

    What would have happened if the majority of justices had stood together, defying Roosevelt and his court-packing threat?

    Hmmm.... has SCOTUS ever had any balls or integrity?

  • ||

    "That terminology was taken from Family Guy."

    And thus we have perhaps found the true dividing line between the geek generations. Those of my heyday might pepper our conversations with Star Trek references as if everyone knew them. Those of a latter generation would do similarly with FG references. Often, we would both be wrong, especially when conversing with those from the other cohort.

    Especially in this case, I don't really care where the terms came from, I just want to be sure I understand what they mean. Lost way down in the noise floor is my original contention that our new regulation czar bears a striking resemblance to the guy that plays the loser legal counsel on Scrubs.

  • Morton Kurzweil||

    The problem is not with Lochner vs. New York. It is about the insidious acceptance of business as an identity with constitutional rights.
    Business acts may be derived from the liberties of the people, but nothing requires business , even as limited liability corporations to hold itself a a person defined by the constitution to have personal liberties.
    Citizens are free and equal if are equally responsible for their actions.
    Limited risk is a fine idea for a business venture. It is an impossibility for a free citizen.
    Activism defining a corporation as an individual was the first step toward class distinction and special interest groups.
    Is it just to believe that a corporation will live indefinitely and continue with liberties invented in law while the citizen dies having no rights after death? Amendment IX states that certain rights nor enumerated shall be retained by the people, not by artificial agents os special interest groups.

  • ||

    The biggest problem with Sunstein is that he is a bald headed socialist fucktard. Nuff said. Next blog post please.

  • Attorney||

    Activism defining a corporation as an individual was the first step toward class distinction and special interest groups.

    If so, that activism started with the ancient Romans, if not earlier still. Corporations have been artificial persons for thousands of years.

  • hmm||

    Reason has some of the best file photos around. No one escapes the retarded expression photo around here.

  • Hobo Chang Ba||

    I'm no lawyer, but I see this as a highlight of the problem with conservative definition of "judicial activism." Everybody agrees that the point of the Supreme Court is to knock down unconstitutional laws. The problem with this is the constitution's a pretty freaking vague document. See: the commerce clause, the welfare clause, the 9th Amendment, the 10th Amendment. All of these are pretty broad in scope. If one finds health care to be a human right, one could construe that a law merely permitting the exclusion of anyone from the insurance pool as being a violation of 9th Amendment rights. Any action can fall under the premises of the Welfare Clause and the Commerce Clause.

    Some would argue that this vagueness was intentional by the wise founding fathers to permit progress over time; I argue it makes all the lines pretty damn unclear and for "constitutionalists" to pretend that there is one strict definition is disproven by the vast expanse of interpretation the document is allowed to easily be stretched across.

    Things like the right to privacy were likely not explicitly put in there because the government SHOULD keep tabs on, say, felons on parole or real domestic terrorists. You would get lawsuits from child molesters arguing that surveillance leading to rearrest would be a violation of his Constitutional right to privacy. Also, the right to enter into contracts would not be permitted if, for example, the contract were illegal. These "rights" thus have to be extracted out of the document via judicial interpretation, and as government has gotten more intrusive, the interpretations have become more expansive on government power. For Scalia and Bork to claim Lochner as judicial activism basically implies that there is no such thing as construed, non-enumerated rights (which are reasonably open to interpretation by the Court) - thus we theoretically have neither a right to privacy (other than the specific examples enumerated) nor a right to enter into voluntary contracts. I don't think that they can justify claims of originalism (the actual intentions of the founding fathers) with such a view.

    It would honestly be easier if the Constitution were rewritten without vagueness as to the proper role of the federal government vs. state governments, as to the regulatory powers of the federal government and as to non-enumerated rights like privacy and voluntary contract. It's a great document, but it could be much, much better, which is why I think calling oneself a "constitutionalist" is fairly meaningless. Obama was a constitutional law professor, and many claim he still obviously doesn't understand it - I would argue that the Commerce and Welfare clauses are so broad and the 9th and 10th amendments so toothless, that his interpretation is still within bounds, even if I hate his interpretation of it. Then again, if it were to be re-written, in reality it would likely be worse than the current one - noting the current political climate.

  • ||

    He has a girl's name, so I don't have to pay any attention to him.

  • The Libertarian Guy||

    Maybe that's why he's a dick... cuz his parents gave his a shitty name.

    Maybe, on top of that, he was the kind of guy who got his head dunked in the toilet in grade school, high school, AND college... and now he's getting revenge by being an unelected, unaccountable virtual Cabinet post owner.

  • ||

    @Hobo

    Yes, but let's say "health care is a right" and then figure out how to satisfy that right in a way that doesn't violate the rights already established. I'm not sure it can be done because then you are saying a person has a right to a service that requires the actions of another. Can you force that other to provide that right and not violate pretty much the entire bill of rights as well as many parts of the constitution?

  • KipEsquire||

    It takes a uniquely lawyer-style sort of cognitive dissonance to conclude that there is a constitutional right for Adult Male 1 to invite Adult Male 2 into his bedroom for consensual sex, but not for Adult Male 1 to invite Adult Male 2 into his bedroom to paint it for $4.00 per hour.

  • jester||

    Cass means "Choked on a Ham Sandwich". I thought everyone knew that.

  • jester||

    Mr. Root was just pointing out the angle that Big Labor didn't like small businesses with non-union workers. Through regulation (licensing) they could reduce competition of the small bakery.

    Obama/Susstein/Big Labor. Going for that connection.

  • Hobo Chang Ba||

    SusanM,
    I agree with you completely. I'm just saying that if the government or a court were to find health care as a non-enumerated "human right" as so many leftists believe it is, a law preventing you from access to your human right could be in violation of the Constitution. The right to the fruits of your labor is non-enumerated, thus open to interpretation. My general point is that non-enumerated rights leaves so much room for interpretation that statists can argue that pretty much anything not explicitly listed is fair game to attack.

    The welfare clause can mean anything - there could be a government-mandated diet of spinach, fish, rice and green tea because that diet would be in the general welfare of the citizenry, which the state has a vested interest in preserving (especially if the government provides health care). There's arguably a non-enumerated right to eat whatever the hell we want, but would that not be judicial activism under Scalia's definition of extracting artificial rights that don't exist in the formal document?

  • ||

    I don't think so since such a mandate would require that broad and thorough surveillance would have to be required to ensure compliance with the spinach mandate so that the mandate would be unconstitutional long before the question of a "new" right would come into play.

  • Hobo Chang Ba||

    A partial list of non-enumerated Rights that should be explicitly spelled out in the Constitution:

    - the right to privacy, barring investigation of criminal activity
    - the right to enter into legal, voluntary contracts
    - the right to consume a product legally acquired
    - the right to not consume a product
    - the right to die
    - the right to deny health treatment to oneself
    - the right to not work
    - the right to the fruits of one's labor
    - the right to own property, if legally acquired through contract
    - the right to sue government
    - the right to organize a proprietorship or partnership
    - the right for an adult to engage in consentual sexual intercourse with another non-related adult
    - the right to not vote
    - the right to organize a political party, organization or assembly
    - the right to not be forced into joining the military

    Right now, any of these things is subject to debate.

  • Art-P.O.G.||

    Hobo Chang Ba,

    Nice analysis, particularly for a fellow non-lawyer.

  • J D||

    And thus, libertarianism is subsumed into the myriad of competing interpretations of the Constitution; and is one, at that, which remains purposefully (or dogmatically) ignorant of modern trends in constitutional law.

  • ndjonaz||

    The Robert's transcript explains the objection to the case is not about the rights involved, but that judges shouldn't even be deciding it. Which is in line with Bork's comment, too. That's not ignoring the 9th or the 14th but leaving it to the legislature to craft a workable path.

    It's not even in the same conversation with Sunstein's views.

  • ed||

    Ted from "Scrubs" is the new Office of Information and Regulatory Affairs Czar?

  • ed||

    Hobo Chang Ba | September 19, 2009, 1:15am | #

    A partial list of non-enumerated Rights that should be explicitly spelled out in the Constitution
    ...

    That's what the Ninth Amendment is for. You can't enumerate every single right. Leaving one out imperils it. Better to say we Americans possess all those rights to begin with; to affirm that our rights are not gifts and favors from the government, to be taken away at a whim.

  • ||

    You can't enumerate every single right.

    "Everything not Prohibited is Mandatory."

  • Suki||

    You can't enumerate every single right.

    Orwell did it in Animal Farm and included the concept of dynamic editing.

  • ||

    After all the yakking, we'll see what Sunstein does to such of our rights as the government has vouchsafed to let us keep.

  • Hobo Chang Ba||

    "That's what the Ninth Amendment is for. You can't enumerate every single right. Leaving one out imperils it."

    That's true - and maybe there should still be a 9th amendment style catch-all for the rest, but my point is that there are a great number of negative rights that we are taking for granted and leaving up to judicial interpretation. Judicial activism is reading rights that don't explicitly exist in the constitution to invalidate laws. That's not the same thing as making the laws, it's more like inventing non-enumerated rights. I would argue that judicial activism is perfectly acceptable as long as it is inventing non-enumerated negative rights (thus expanding individual rights), vs. non-enumerated positive rights (which naturally conflict with the negative rights of others). To reject judicial activism, however, seems like punting on being able to extrapolate any non-enumerated negative rights that can not be taken away by government.

  • ||

    "If government could not intervene effectively, none of the individual rights to which Americans have become accustomed could be reliably protected. [...] This is why the overused distinction between "negative" and "positive" rights makes little sense. Rights to private property, freedom of speech, immunity from police abuse, contractual liberty, free exercise of religion--just as much as rights to Social Security, Medicare and food stamps--are taxpayer-funded and government-managed social services designed to improve collective and individual well-being"

    http://home.uchicago.edu/~csunstei/celebrate.html, Accessed July 23, 2009

    This is the published viewpoint of the regulatory czar...scary. How is "immunity from police abuse" a taxpayer funded social service...I guess it makes sense if you're a Mafioso.

  • ed||

    Suki | September 19, 2009, 12:28pm | #

    "You can't enumerate every single right."

    Orwell did it in Animal Farm and included the concept of dynamic editing.


    An animal fable has what to do with constitutional law?

  • ||

    The conservatives were asked by the neoconservatives to lay off. Politics is accomodation.

  • Boob Czar||

    Who the fuck names their kid Cass?

    Why, Momma Cass, of course.

    Ham sandwich, anyone?

  • economist||

    "The biggest problem with Sunstein is that he is a bald headed socialist fucktard. Nuff said. Next blog post please."

    So would it be OK with you if Sunstein was a socialist fucktard with a full head of hair?

  • ||

    For all those in love with the Lochner decision: please publicly propose a return to the forced 12-hour per day, 72-hour per week standard of the 1890s and see how Americans react to your proposal.

  • hmm||

    I can name more people I know that work 12 hour days than 8 hour days. Hell that was the wall street dream.

  • Larry Hart||

    Despite Damon Root's ad hominem attack on the American Conservative Union, I am delighted he has enlightened those of us who are not constitutional scholars as to yet another reason Cass Sunstein should not receive a pass from those who believe in limited government.

    As to the comment that we "falsely charged Sunstein with being an out-of-control radical," we merely chose a few quotes from Sunstein's long paper trail, including, but not limited to:

    "...animals should be permitted to bring suit (in court); "Almost all gun control legislation is constitutionally fine"; and "In my view, the idea that the Constitution protects commercial advertising is a mistake."

    I will leave it to the good judgment of REASON's readers to evaluate the reasoning behind this type of thinking.

    Larry Hart
    Director of Government Relations
    American Conservative Union

  • Attorney||

    For all those in love with the Lochner decision: please publicly propose a return to the forced 12-hour per day, 72-hour per week standard of the 1890s and see how Americans react to your proposal.

    Forced?

  • Dan||

    Sorry to have to say it, but right now the Libertarian-Right is engaged in a dangerous game of dilution and reduction. Consider:

    * People in jail or executed on the basis of shoddy and unfair criminal prosecutions -- TYRANNY! (sure)

    * People denied the right to use common drugs for medical or recreational reasons -- TYRANNY!! (well, okay)

    * People lose their rundown tarpaper houses to eminent domain for a sports complex -- TYRANNY!!! (um, maybe)

    * People lose their right to smoke at the table while eating at a Denny's -- TYRANNY!!!! (wait a sec...)

    * People earning $500K a year see a 2% increase in their marginal tax rate -- TYRANNY!!!!! (aw, come on now...)

    * People no longer get to leverage superior bargaining power with employees to demand a 72-hour workweek -- TYRANNNYYYYYYY!!!!!!!!!!!!
    (ok, now you're joking, right?)

    But the Libertarian Right does not joke. It's always mad-as-hell serious. And reductionist. First, the government tells you you can't smoke at the Olive Garden. Then, the Red Guards line us up in front of open pits and cut us down with the sub-machineguns. It's inevitable in the most linear sense, and any doubt on your part is just false consciousness.

    Maybe, just maybe, less is more, folks? Maybe we should accept the 40-hour workweek and the smoke-free indoor air, and focus more attention on something of higher importance, like the tidal wave of SWAT raids and the mindlessly destructive war on victimless vice?

  • Art-P.O.G.||

    Awaiting cries of "cosmotarian" in 3....2....1....

    But seriously, Dan, your (apparently more moderate) take on libertarianism is as valid as anyone's.

  • ||

    Yes, forced 72-hour work week. At the time, it was very common for employers (as in the Lochner case) to demand that employees work a 72-hour week or be fired. The workers affected by the New York law in Lochner largely did not want to work more than 60 hours. Lochner was a victory for business owners who liked to force their employees to work long hours at low pay.

  • abercrombie milano||

    My only point is that if you take the Bible straight, as I'm sure many of Reasons readers do, you will see a lot of the Old Testament stuff as absolutely insane. Even some cursory knowledge of Hebrew and doing some mathematics and logic will tell you that you really won't get the full deal by just doing regular skill english reading for those books. In other words, there's more to the books of the Bible than most will ever grasp. I'm not concerned that Mr. Crumb will go to hell or anything crazy like that! It's just that he, like many types of religionists, seems to take it literally, take it straight...the Bible's books were not written by straight laced divinity students in 3 piece suits who white wash religious beliefs as if God made them with clothes on...the Bible's books were written by people with very different mindsets.

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    is good

  • grinding plant||

    Yes, forced 72-hour work week. At the time, it was very common for employers (as in the Lochner case) to demand that employees work a 72-hour week or be fired. The workers affected by the New York law in Lochner largely did not want to work more than 60 hours. Lochner was a victory for business owners who liked to force their employees to work long hours at low pay.

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