Natural Law and Economic Liberty

Writing in The Wall Street Journal, Northwestern law professor John McGinnis reviews conservative legal scholar Hadley Arkes’ new book Constitutional Illusions & Anchoring Truths: The Touchstone of Natural Law. One passage in particular jumped right out:

One of the many virtues of "Constitutional Illusions & Anchoring Truths" is that Mr. Arkes applies his ideas to particular cases, avoiding the airiness of mere theory and arriving at pleasingly contrarian positions. He defends, for instance, the decision of Lochner v. New York (1905), a case that has become an emblem of judicial overreach. In Lochner the Supreme Court held that the state could not limit the working hours of employees in bakeries. Mr. Arkes finds the linchpin of the case in natural law—the natural right of a worker or owner to pursue his occupation. He concedes that this right must sometimes yield to public regulation, but he shows that the hours-limiting law at issue in Lochner, struck down by the court, had no health or safety rationale. It was intended merely to favor unions and large companies at the expense of small businesses run by immigrants, like Joseph Lochner himself.

This is noteworthy because most legal conservatives—not to mention virtually all legal liberals—intensely dislike Lochner and frequently denounce it as one of the Court’s worst decisions. The truth is that Lochner deserves none of the vilification it has long received and, as Arkes apparently explains in his new book, was actually an important judicial check against special interest legislation as well as a defense of the fundamental right to liberty of contract.

For more on conservative legal hostility to Lochner and economic liberty, see my article "Conservatives v. Libertarians."

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  • ||

    Do people who work 10-14 hour days need more medical care? If so, there's your health argument. Gotta protect the workers from themselves just as much, if not more so, than from their employers.

  • Old Mexican||

    This is noteworthy because most legal conservatives — not to mention virtually all legal liberals —intensely dislike Lochner[.]

    Yes. Eleutherophobes would.

  • Alan Vanneman||

    "Mr. Arkes finds the linchpin of the case in natural law—the natural right of a worker or owner to pursue his occupation."

    The "natural law" is not the law of the land in the United States. The Constitution is the law of the land. Natural "rights"--like the "right to be left alone," the "right to pursue an occupation," or the "right of a woman to control her body" are mere debating points with no real-world implications, unless the Supreme Court decides that they are explicitly or implicitly recognized by the Constitution.

  • ||

    "others retained by the people" = "natural law"

  • ||

    Not to mention that there is no power granted to any jurisdiction, fed or state, giving the same the right to pass legislation in contravention of natural rights.

  • ||

    All carve-outs to the bill of rights (fire in a crowded theater yada yada) = defining the bounds of the Police Power = Natural Law

  • cynical||

    Ninth amendment

  • Old Mexican||

    Re: Alan Vanneman,

    The Constitution is the law of the land. Natural "rights"--like the "right to be left alone," the "right to pursue an occupation," or the "right of a woman to control her body" are mere debating points with no real-world implications, unless the Supreme Court decides that they are explicitly or implicitly recognized by the Constitution.

    Because, after all, man was created in the image of the Almighty State.

    No?

  • Ray Pew||

    If "rights" have "no real-world implications, unless the Supreme Court decides that they are explicitly or implicitly recognized by the Constitution", then even after such recognition, they would hold no real-world implication. The right to self-defense seems to have real-world implications regardless of who agrees with this proposition.

    And if the SC decides to recognize such "rights" that have no basis in reality, then on what grounds would they reason as to accept them?

  • CrackertyAssCracker||

    Just looking at immediate outcomes, I like Lochner vs New York just fine. But also, just looking at immediate outcomes, I hate Wickard vs Filburn even more. Wasn't Lochner vs New York a step on the path to Wickard vs Filburn? I think so, and that is why I still say Lochner sucks. And I'd stick by that even if orignal goodness from Lochner was with us. Of course the whole natural-right-to-your-own-labor part of Lochner is a quaint memory nowadays, only the "the Federeal Government can do whatever it wants" precedent remains.

  • ||

    The New York state bakeshop act at issue in Lochner was naked protectionist legislation. The New York legislature was not empowered by the constitution of New York to enact such legislation.

  • YAF||

    All I know about natural law I learned from Ryan Sorba.

  • mb||

    hadley arkes is a genius.

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