Supreme Court

Ted Cruz Attacks SCOTUS for 'Judicial Activism,' Gets the Facts Wrong About Major SCOTUS Case

Was Lochner v. New York a "lawless" decision?

|

Credit: Gage-Skidmore / Foter.com / CC BY-SA

Yesterday Sen. Ted Cruz (R-Texas) presided over a Senate subcommittee hearing titled "With Prejudice: Supreme Court Activism and Possible Solutions." Cruz set the tone in his opening statement, lambasting the Supreme Court for its "judicial activism," for its "long descent into lawlessness," for behaving like a "super legislature," and for its "imperial tendencies."

Pretty strong stuff. Unfortunately, Cruz undermined his own case by getting the basic facts wrong about one of the very "imperial" rulings he was trying to discredit. That ruling came in the 1905 case of Lochner v. New York, which Cruz, who was clearly reading from a prepared speech, erroneously described as an example of when "an activist Court struck down minimum wage laws" on behalf of an individual right "that has no basis in the language of the Constitution."

In reality, Lochner struck down a law regulating the number of hours that bakery employees were permitted to work—the case had absolutely nothing to do with wage controls. And whether Cruz is aware of it or not, there is in fact plenty of evidence showing that the unenumerated right to liberty of contract—the constitutional right that the Court protected in Lochner—does have a basis in the 14th Amendment.

If Cruz is interested in learning the actual facts of this important case, perhaps he should ask his colleague Sen. Rand Paul (R-Ky.) for a quick tutorial. Paul has accurately described the virtues of Lochner on more than one occasion.

Related: Why Lochner Isn't a Dirty Word

Advertisement

NEXT: Universities Think Title IX Also Requires Them to Impose Gag Orders on Rape Victims

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Look it doesn’t matter if he’s mildly retarded, Ted Cruz is the choice of Fox News-watching grandparents everywhere!

    1. Hugh, you just don’t get it. This is just another example of Reason attacking a conservative for something, when they could have gone to the newspapers and found something stupid a democrat has said or done and written a story making fun of that, instead.

    2. Cruz isn’t retarded. He’s simply an opportunist with no scruples.

      The Tea Party was really just a populist conservative movement, and Ted Cruz is the poster child.

      1. “Cruz isn’t retarded.”

        He’s probably second to Carson only in terms of non-political accomplishments.

        1. Now Tulpy-Poo: you’re retarded. It’s good that you showed up in a thread about a retard to reinforce that. It’s quite fitting.

          1. It’s the cake; he always wants cake. They all do.

          2. I’m not Tulpa, Warty, and Ted Cruz is more accomplished than you’ll ever be, that’s clear. So I guess that means you’ve been outperformed by a retard. I’m sure you’re used to that by now though.

            1. Whatever you say, Tulpy-Poo. The only thing more hilarious than your continued attempts to persist this idiotic sockpuppet is the abject patheticness of your need for it in the first place.

              Lonely again, it seems. Oh Tulpy-Poo. Your life is beyond pathetic. Have you thought about suicide?

              1. Not just a stalker, but psychopath as well, huh?

    3. Sara: What I’d like to know is, why are there retarded people in school with my daughter politics?

      Principal Onyx Blackman: Mrs. Blank, we’re doing our best to weed them out, but some of these retards are extremely clever.

  2. Wow, criticizing Lochner is pretty shitty for a supposed supporter of limited government and free markets. But I guess it falls in line with his other positions that the labor market is totally different and stuff.

    1. He’s clearly been hanging out with Kurt Lash.

      1. You’ve mentioned him several times lately.

        When will you just go show up at the poor guy’s house naked, and express your true feelings for him?

        1. *edit* Re-reading that, I don’t think I would describe anyone as a “poor guy” if you were to show up at their house naked, but the broader point stands.

          1. Hurr durr, you said “broad”. About a chick. Get it?

            I need more caffeine.

          2. It’s Root’s obsession!

            1. Whose root?

  3. That ruling came in the case of Lochner v. New York, which Cruz, who was clearly reading from a prepared speech, erroneously described as an example of when “an activist Court struck down minimum wage laws” on behalf of an individual right “that has no basis in the language of the Constitution.”

    So, he’s wrong on the facts, but more importantly, he’s a slaver. Fuck off, Ted Cruz.

    1. You know who else claimed that emancipating labor from bad laws had no basis in the constitution?

      1. The answer was John C. Calhoun, people. Jeez, read a book.

  4. douchebag.

  5. This just in… hot off the steamy presses! Shocking news that flash banging a infants face might lead to actual repercussions (pun not intended)!

    http://www.gazettextra.com/201…..sville_boy

    Will there be a conviction?

      1. Okay, so my news was just moist.

        Non-lawyer here. If I read that right, there won’t be any criminal charges? Grand Jury just decides if it there is enough evidence for a case. They said there was but they’re (the DA?) considering her termination and voluntary surrender to be punishment enough (their viewpoint, not mine).

        1. Never mind. Just read comments on other article. Confirmed.

    1. Were they able to gather any salvageable spare parts off the kid that could be flipped for a little cash? I mean the damage is already done WHY DO YOU OPPOSE MEDICAL RESEARCH

      1. *scratches chin, a twizzler thoughtfully*

        “How can I relate this to abortion?”

        1. Damnit, that was supposed to be, “chews a twizzler thoughtfully”

          Fail.

          1. I thought maybe you were trying for a haiku.

          2. I thought a Twizzler was one of your fancy masturbatory techniques. You know, like the Lemonhead that required a trip to the emergency room?

            1. I thought it was a pet name for his pee-pee.

        2. I mean, shouldn’t all abortions be performed with flash bangs? If we’re being honest?

      2. I know some people fetishize corpses, but why the hell shouldn’t dead bodies be used for medical research or tissue/organ transplants?

        Oh, and the kid didn’t die.

        1. No reason at all, friend. Social undesirables need to serve some purpose after all. There is absolutely nothing creepy or disturbing about the fact that in New York last year more black babies were aborted than were born, then chopped up and parted out like a hot Lambo. It’s all about that freedom of choice

          #BlackLiversMatter

          1. From atop his own perceived sense of cleverness he gazed down…

            1. Shouldn’t you be doing back-and-forth name-calling for like 500 comments with that other guy?

          2. Do you imagine that you are being clever or something?

            It’s none of my business who decides to have abortions, no matter what their race is.

            And who the fuck said anything about abortion? This was about police burning the shit out of a kid.

  6. I wonder what he’s clapping about in that picture.

  7. Hmmm. An ophthalmologist vs. a magna cum laude graduate of Harvard Law School who clerked for a US Supreme Court Chief Justice.

    I’m frankly a little torn on this one. I’d like to read a brief from each of them before deciding who to agree with.

    1. This is easy. It is harder to Peter Principle your way through being a shitty ophthalmologist people losing their site and all. What is the word for that? Oh yeah, consequences. A Haaavaaard LS school grad, on the other hand, can be a complete fucking idiot and become a president.

      1. Given that our current “Top Men” can get State to = No States with 20 something pages of psychobabble, I would say that whatever scholastic institution failed to instill upon them neither logic nor integrity are less useful than a pile of horseshit. So fuck HArvard.

        1. I think you mean “legalese” instead of “psychobabble”, but I agree that legal reasoning is often too wordy.

          1. and rarely reasonable.

        2. Oh, they are useful. Useful doesn’t imply that good results are necessarily produced. But I suppose piles of horseshit can be useful too.

    2. Credentialism is such a convenient replacement for critical thinking.

      1. If the subject were, for example, macular degeneration, I would listen to Rand Paul instead of Cruz, despite Paul’s credentialism.

    3. I’d like to read a brief from each of them before deciding who to agree with.

      So much this.

  8. But what does Trump think about Lochner?

    1. He thinks Lochner’s a rapist.

    2. He thinks Lochner is a loser. After all, Lochner wasn’t a billionaire.

  9. Wow, that’s too bad. I always thought Cruz was smarter than this, and to completely screw up an interpretation of Lochner -from a guy who clerked for a SCOTUS judge no less- is inexcusable.

    Stupid party gotta stupid.

  10. The problem isn’t restraint vs activism. The problem is judges deciding the outcome of a case, then doing mental gymnastics to justify it. Until that’s fixed, talking about activism and restraint is like arguing over the paint color of a house with a crumbling foundation.

  11. Sorry, but I have to defend Cruz here. Not his silly idea to override the Court (the Founders already took care of that Ted!), but on Lochner. Root says “whether Cruz is aware of it or not, there is in fact plenty of evidence showing that the unenumerated right to liberty of contract?the constitutional right that the Court protected in Lochner?does have a basis in the 14th Amendment.”. That’s pretty debatable (Root’s link points to comments by the architects of the 14th about the right to make a living and to make and enforce contracts, that’s not necessarily or even probably referring to the kind of laws at issue in Lochner), but even if true Cruz said there was “no basis in the *language* of the Constitution” for a liberty to contract. And he’s right, and that’s his point (that alleged rights untethered in the text can be conjured up by any judge, and we’re not going to like a lot of those). Cruz saying the language of the Constitution doesn’t bar laws like these doesn’t mean he supports them.

    1. Only a wannabe pretend-a-lawyer would quibble so luxuriously. If you don’t consider economic freedom to be a core human unalienable right, you are ready to join Orin Kerr in the kiddie quibble corner.

      1. I don’t think every moral right is protected by the Constitution.

        1. The company you thus keep; is that the company you want to keep?

          1. I don’t think the Founders were trying to write some cosmic Declaration of Rights UN type of thing, that’s all.

        2. 9th amendment says hi.

          1. I don’t think that can answer it. For one reason some rights are applicable to other people apart from governments, the 9th certainly wasn’t trying to capture all of them.

            1. The 9th covers all natural law rights.

              They knew they couldnt list them all so they threw a catchall in for THIS EXACT FUCKING PURPOSE.

              1. Stuff like freedom of contract is exactly why the 9th was created. They couldnt foresee the specifics but understood human nature.

              2. A lot of natural rights are ones I can assert against a private person like you. You think *that* was what the Founders were getting at in the 9th?

            2. They werent concerned with people to people but with governments. Which is what Lochner was about. Government interference in contracts.

              1. But freedom of contract can’t mean no government restrictions on any voluntary contract. If that were so then even if most of us decided or saw that abortion is murder and passed a law forbidding it that right could be invoked by parties already agreed to perform one, to take one example.

                1. Except that you’d have to have all three parties agree to the abortion.

                  1. Fair point, but consider that anything short of declaring the fetus to be a full person, things like contemporary abortion restrictions would be struck down.

                    That can’t be correct, and more importantly it almost certainly how the Framers saw it (even in 1868 there were health, safety and morals restrictions on quite a few occupational pursuits).

                    1. I agree and I don’t know the answer, just raising a point for consideration.

    2. That’s fascinating, Tulpy-Poo. Tell us more about whatever it is you think you’re saying. It’s always hilarious watching you babble. Lonely again today, huh?

      1. Lunch break. What’s your excuse?

        1. My what? Uh oh, Tulpy-Poo…you’re babbling again. Are you overdue for your electroshock therapy again?

          1. Considering your omnipresence here I guess you’re right I should have asked about when and why you’re ever not here.

            1. Well, you’d know, Tulpy-Poo, considering you’re our resident obsessed stalker. You see when everyone is here, right? Because you never stop watching?

              Lonely again, it seems. Oh Tulpy-Poo. You should probably just off yourself.

              1. Who’s stalking who here Ms Draper? You’re chasing my comments on this thread Evelyn.

                1. Oh Tulpy-Poo. You’re so boringly predictable. You literally have one script that you stick to at all times, and you’re reading from it right now as always. Of course, you’re too stupid to understand that’s why it’s so easy to spot you.

                  1. I’m not going to play Misty for you again Evelyn, so you might as well quit.

                    1. You literally couldn’t be more Tulpical. It’s just amazing.

                    2. You literally couldn’t be more Tulpical. It’s just amazing.

                      Just because they’re both simpletons doesn’t make them the same person.

                    3. He needs to simplify his obsessions. I imagine they’re tiring for him.

                    4. Oh Tulpy-Poo, your projection is as delicious as it is predictable. Please, do exactly the same thing as always. Again. And again. And again.

                    5. Wow, you’re really on a stalk-a-thon here. Keep following there Evelyn!

    3. Not his silly idea to override the Court (the Founders already took care of that Ted!)

      Unless you’re talking about the power of Congress to limit the jurisdiction of the court, I don’t see what you’re talking about here. Given that judicial review is a power not mentioned in the Constitution, it’d be a neat trick to have a method to override it in there.

      1. Hint: Article V

        1. Hint: lonely. Again. Poor baby. Would you like a juice box?

          1. Who’s stalking who again?

            1. So. Predictable. So boring.

      2. And Congress has the power to impeach supreme court justices. The Document, even when read in light of Marbury, which as you point out was not decided by the founders, there is no way you can read the document as giving any of the branches the final say in what the Constitution means.

        One of the worst problems affecting our Republic is that we have increasingly lost touch with the idea of separation of powers. The guys like Root who worship the Supreme Court are no better in this regard than the people who worship the imperial Presidency.

        1. Separation of powers has morphed into a big rubber stamp.

          1. I am pretty sure the states that don’t want gay marriage don’t see it that way.

          2. It also gets in the way of…PROGRESS.

            1. Yes. Which was the whole point. In my state the left is constantly arguing that our bicameral legislature should be reduced to one house to save money. As if not paying a few senators would save more money than eliminating a check against expensive government programs. Leftists are idiots.

            2. I mean the state’s bicameral legislature, not the federal one.

        2. “One of the worst problems affecting our Republic is that we have increasingly lost touch with the idea of separation of powers. ”

          I’m sure the political establishment and media will conveniently remember it as soon as the next conservative or libertarian-ish president is elected.

          1. Yes. And I am pretty sure Root will remember as soon as the Supreme Court doesn’t give him whatever pony he wants.

            1. because he likes every single decision they have made so far?

              1. Because he suddenly is in love with court founded rights after the Supreme Court found a right he likes. Let the court start finding rights he doesn’t like or making decisions he hates, then I bet he won’t be so sure they get the final say on things and will think this whole separation of powers thing is a pretty good idea.

                1. root has been consistently critical of Supreme Court decisions. he is Reasons primary source of coverage on the judiciary. he has never, in my estimation, argued in favor of disbanding or politicizing the Court

                  some people, John, have the foresight to appreciate the seperation of powers despite the short term political implications. of course its difficult for a partisan hack to wrap their mind around such things.

    4. Sorry, but I have to defend Cruz here

      Of course you do.

    5. I have to agree with Bo on this. Giving that much power to 9 people( 5 really) is dangerous. You don’t think at some point they’re going to find a right to a guaranteed income, to housing, medical care, Wi-Fi, or anything else some coalition of people demand is their “right”.

      1. Sure they will. The problem is that rules made by unelected people only have so much legitimacy. We give the court too much power and they abuse it enough, eventually the public is going to rise up and put a stop to it. When that happens, there won’t be any court or rule of law to save us.

        We have a very delicate and well crafted system. It would be nice if we wouldn’t break it by continuously allowing people who lose elections to get their pony anyway.

        1. Yes, and I doubt the system that replaces this one will be better than the one we have.

        2. Question for you John. Do you believe in judicial review?

          1. Sure I do. But like everything else, it is not so simple. In a real sense we own the constitution. As Franklin said “here is your republic if you can keep it”. As a general rule does the court get the final word? Sure. That word, however, is not absolute.

            For example, lets say the country went into revolt over gay marriage and elected enormous conservative majorities to the Congress in the next election. Then the Congress impeached the five justices who voted in favor of it and confirmed five new members appointed by the new president who were more to Congress’ liking and overturned the decision.

            That in my mind would be entirely legitimate and Constitutional action. If judicial review meant “what the Supreme Court says goes”, then Congress wouldn’t have the power of impeachment and the power to limit the jurisdiction of the courts.

            Judicial Review means the courts get the final say in the case before them not in the meaning of the Constitution.

            1. Judicial Review means the courts get the final say in the case before them not in the meaning of the Constitution.

              Perhaps I misspoke (I am not a lawyer) but I thought Judicial Review meant that the court had the authority to strike down legislation (when challenged) as unconstitutional.

              Do you define it differently? And if so do you believe the SCOTUS has the authority to declare laws (when challenged) unconstitutional?

              1. Sure they have the authority to do that. And the law is struck down. But, that doesn’t mean the Congress can’t then change the composition of the court and make the law good again.

                The other issue is what authority do the courts have to force Congress or the President to comply with their orders? That is a delicate question. If both the President and the Congress think the court is wrong about a case and just ignore the court, is that invalid? And if it is what difference does it make since there is no remedy?

                I am not so sure it is automatically invalid. Suppose for example the Supreme Court went made and decided there was a right to a guaranteed income and ordered the Congress to provide for such. If Congress ignored that and just refused to allocate the money, would they be wrong in doing so? If you don’t think so, then you think Congress and the President get a say in what the Constitution says.

                1. Suppose for example the Supreme Court went made and decided there was a right to a guaranteed income and ordered the Congress to provide for such.

                  I think this is the major problem with how things evolved. Much like rights are now interpreted to be things granted to people at another persons expense, the court has changed from merely being able to say “No” to a law to being able to legislate results.

                  I really don’t have a problem with a court that who’s sole power is to refuse to convict no mater what rationalizations they choose. That increases freedom and is simply a way to negate bad legislation. Somewhere along the line the court started legislating solutions as opposed to negation and legislation by a non elected body is never going to lead anywhere good in the longer term.

                  1. Federal courts have effectively taken the taxing power from states and stolen billions of dollars from taxpayers in the name of “equal protection”. Has Root never heard of the Kansas City Schools’ segregation cases?

                2. My point is, there is a distinction between rights, powers and entitlements.

                  People incorrectly confuse the three. Government doesn’t grant rights. People have rights (negative rights) by virtue of their existence. Government has no rights only powers granted them by the nation’s founding document. Entitlements are positive rights. Some are legitimate (courts, post offices), others are not (healthcare, welfare, SS…) The difference between them being what powers are enumerated in the constitution as described in 10A.

                  SO…in the case of gay marriage, the SCOTUS had the power to say that laws defining marriage as being only between a man and a woman are unconstitutional under the equal protection clause and all such laws are now null and void.

                  What the SCOTUS does NOT have the power to do is to declare marriage is a right OR declare entitlements as rights.

                  First, marriage (the non entitlement portion), as you’ve said many times, has always been a right (negative rights are limitless, 9A) and it is not the function of any part of government to grant.

                  Second, the only positive rights the government is granted power to provide are those powers enumerated in the document (10A). And I defy anyone to find where the constitution allows government to provide marriage benefits.

                  It’s a good thing when the SCOTUS strikes down unconstitutional law. It’s a bad thing when the SCOTUS assumes powers it does not have.

                3. But, that doesn’t mean the Congress can’t then change the composition of the court and make the law good again.

                  Agreed.

                  If both the President and the Congress think the court is wrong about a case and just ignore the court, is that invalid?

                  Impeach them or go through the Amendment process.

                  And if it is what difference does it make since there is no remedy?

                  There is a remedy to the executive/congress ignoring the court and that is for people to fulfill their oath to support and defend. It gets trickier when the SCOTUS is the entity being unconstitutional, but there is a point in there somewhere where it is justified.

                  1. Yes, It is up to the people. And if the people are fine with the Congress and the President smacking down the Court, then that is the way it goes. Ultimately, the Constitution and the government belong to the people not the judges.

      2. You don’t have a right to fuck-all that anyone else has to provide for you unless it is within the enumerated powers granted government to provide.

        You have a positive right to a post office, a military and courts…

        other than that…not so much.

        1. Well I believe that, you believe that, but what do the Supreme’s believe?

        2. Says you. Sadly, not everyone agrees with you. And it is doubtful the people that do will be wielding the power you want to give to the Court.

    6. …Cruz said there was “no basis in the *language* of the Constitution” for a liberty to contract. And he’s right…

      “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

      1. That’s a really indirect way to get that. You could use the same text to argue for all kinds of rights, many of which I doubt you’d like.

        1. As I read it, the word ‘retained’ implies negative rights rather than positive ones.

          1. Retained just means ‘not discarded or taken’ right?

            1. Sorry, but I’m not playing this game with a simpleton who has proven over and over that he cannot grasp simple distinctions.

              1. So no answer then? Ok.

                1. That was my answer, simpleton. But you’re too simple to understand it.

                  1. Yeah, your answer is your not going to give one. Gotcha.

          2. Sarc, if the SC has the sole power to decide what rights people have, they can literally decide that anything is a right.

            1. The way I read it is the word ‘retained’ implies existing negative rights rather than new positive ones. Then again I haven’t been to the same schools as the Nazgul so I haven’t learned to read things like that to mean the total opposite of what they actually say.

              1. And those people are mendacious enough to claim that those positive rights have always existed, but were just never enforced.

                1. “And those people are mendacious enough to claim that those positive rights have always existed, but were just never enforced.”

                  Exactly. For example they’ll take the common law obligations on common carriers to argue the foundation for non discrimination in accommodations should be recognized. Etc

              2. Iirc by the time of the 14th, which incorporates the 9th I should think, some states had recognized rights to education in their constitutions, so at least as to the states there goes that idea.

      2. I think it is still correct to say that there is nothing in the language of the constitution for the specific right. I agree that the 9th implies that right, but it isn’t in the language of the consitituion, it is in the historical context of the understanding of what natural rights are.

    7. He may or may not be right about the constitutional right to contract. But the question is a lot more debatable and subtle than Root pretends it is. Cruz is hardly some fascist monster for seeing it differently than Root.

      1. Cruz is hardly some fascist monster for seeing it differently than Root.

        Well said.

    8. ” And whether Cruz is aware of it or not, there is in fact plenty of evidence showing that the unenumerated right to liberty of contract?the constitutional right that the Court protected in Lochner?does have a basis in the 14th Amendment.”

      Not to mention the 9th and 10th amendments both.

  12. In reality, Lochner struck down a law regulating the number of hours that bakery employees were permitted to work?the case had absolutely nothing to do with wage controls

    I am pretty sure limiting the hours you work also limits your wages. So, Lockner had at least by implication a whole lot to do with wage controls.

    Beyond that, saying he thought it concerned wage controls rather than limitations on hours doesn’t mean Cruz is wrong about the case being judicial imperialism. I can’t find a transcript of his remarks. Where in the video does he say this? I skimmed it and can’t find it. So if he did say it, he didn’t talk much about it.

    Moreover, I can’t find anywhere on the internet where Ted Cruz has actually given his opinion of Lockner. I would be curious to know what it is. Too bad Root is too lazy to do his fucking job and write something substantive about what Cruz actually thinks and why. Is Root so unable to address Cruz’s opinions that the best he can do is play stump the chump about the facts on one case, which he characterizes anyway?

    1. mischaracterizes

    2. Too bad Root is too lazy to do his fucking job and write something substantive about what Cruz actually thinks and why. Is Root so unable to address Cruz’s opinions that the best he can do is play stump the chump about the facts on one case, which he mischaracterizes anyway?

      Someone woke up on the wrong side of the wrong bed. How far back in this discussion do you think Root should go? At some point, you either educate yourself to get up to date, or you keep yourself educated real time. Are you so lazy that you want to do neither?

      1. If Root disagrees with Cruz’s opinion about Lockner, then Root ought to say what that opinion is and why he thinks it is wrong. I don’t give a shit that Cruz misspoke about the facts of the case. That doesn’t necessarily mean he is wrong in his assessment of it.

        Did Cruz mischaracterize the facts and then make erroneous conclusions about the case based on those mischaracterizations? That is what Root implies but never says outright or explains why the conclusions are wrong. And that is sorry writing and analysis. Who gives a fuck that Cruz said it was about wage controls rather than work hour controls?

        What did you learn from this post other than Root doesn’t like Cruz and Cruz said something technically incorrect about the facts of Lockner?

        1. That’s not fair, for one thing you learn Cruz thinks Lochner wrongly decided and the alleged right cited has no basis while Root disagrees on both points.

          1. Oh Tulpy-Poo, you want to have your eristic masturbation session SO BADLY. Today is extra lonely, isn’t it. Awwwwww. Poor Tulpy-Poo.

          2. It is totally fair.

            In reality, Lochner struck down a law regulating the number of hours that bakery employees were permitted to work?the case had absolutely nothing to do with wage controls.

            That is just flat out not true, since limiting hours is effectively the same thing as limiting wages.

            And whether Cruz is aware of it or not, there is in fact plenty of evidence showing that the unenumerated right to liberty of contract?the constitutional right that the Court protected in Lochner?does have a basis in the 14th Amendment.

            That is nothing but an unsubstantiated assertion. Why is Cruz wrong about that? And why does Cruz have the opinion that he does? Root never answers either of those questions. He just links to one of his own articles. Yeah, Root doesn’t like Cruz. We knew that. I want to know what Cruz thinks and why Root disagrees.

            1. He gives a quote for Cruz’s position: that it has no basis in the text of the Constitution. And he links to an entire article where Root gives his evidence that Lochner was correct.

        2. He says its activism along with some comment about it probably being good to not have the law or something. The take is he disagrees with the idea behind the law but thinks the constitution allows it.

          1. And that is what, 40 seconds of a 14 minutes speech? What about the other 13 minutes? Cruz talks extensively about judicial activism and other cases like Roe and the ones from this last term. Yet Root ignores all of that.

    3. I would like to see a transcript too. Cruz is as well versed on SCOTUS decisions as any current candidate on either side of the aisle and It seems unusual he would say that Lochner “struck down minimum wage laws”.

      He would know that Lochner was about limiting the number of hours the baker could work, not the wage thereof, so that quote doesn’t make sense.

      Something seems amiss.

      1. Never mind, that’s what he said.

        Ugh.

      2. Even if he said it, it is effectively a meaningless distinction. Limiting the hours you work limits your wages. I don’t understand why Root thinks this is so important or renders Cruz’s opinion of Lockner, whatever that is, automatically erroneous.

        1. I’ve got to agree with the chubby-chaser on this one.

        2. You know, since Root was actually right about him saying it and it was, after all *you* that missed it you’d think you might give a ‘my bad’ to Root on that.

          1. I never said he didn’t say it. I said I couldn’t find where he did and even if he did it is a meaningless distinction.

            Can you do me a favor and read what I saw before bitching and moaning about it?

            1. Can you do me a favor and read what I saw before bitching and moaning about it?

              He can read it all day long, but that doesn’t mean he’ll understand it.

            2. Yeah, you totally weren’t implying it wasn’t in there. Sure.

              1. I can’t find a transcript of his remarks. Where in the video does he say this? I skimmed it and can’t find it. So if he did say it, he didn’t talk much about it.

                The word “if” is such an unusual word, maybe you don’t know what it means.

        3. I don’t think it’s a meaningless distinction, but either way it’s not a good example to use to make his point. I agree that the last SCOTUS term was way over the line in terms of Judicial activism, and I would agree that this is a troubling precedent in terms of separation of powers. But Lochner is not a good example of this problem. There are so many others to choose from, Wickard, Raich, etc. that I fail to see why using Lochner helps his argument.

          1. If you listen to the speech, Cruz barely talks about Lockner. He talks a lot about Roe v. Wade and the last term. Root never mentions that. If you just read this post, you would think Cruz went on some rant about Lockner. He did nothing of the sort.

            I would be curious to hear what Root thinks of the other 13 minutes of Cruz’s speech.

            1. I agree he barely says anything about Lochner but again, it’s a bad example of the problem he articulates so well in the rest of the speech.

              I agree that this example doesn’t ruin the entire speech, which is the point Root is trying to make in this post, which is also pretty stupid.

        4. Limiting the hours you work limits your wages.

          Didn’t Lochner strike down regulation that limited hours worked? By your contention, that limiting hours worked is limiting wages, then wouldn’t that mean the ruling struck down limited wages?

          1. Yes. that is exactly my contention. What is the difference between me telling you “you can only make $100 a week” or if you make $5 an hour, “you can only work 20 hours a week”? It is effectively the same thing.

            Moreover, the principle in each case is exactly the same. In both cases the government is restricting your right to contract. In one case you can’t contract to work more than so many hours a week and in the other you can’t contract to make more than so much money. They both are a restriction of your right to contract.

            So the fact that Cruz thinks of Lockner as a restriction on wages, when it was actually a restriction on hours, doesn’t mean Cruz’s opinion is wrong about Lockner. Both restrictions are a restriction on the same right. And Cruz’s opinion on either just as valid or invalid depending on your opinion.

        5. The words Cruz used were “minimum wage law.” Even applying the “limited hours = limited wages” reasoning, how would that be a minimum wage law? Wouldn’t it be more of a maximum wage law?

          1. Yes. But the principles involved are the same in either case. Both are a restriction on your right to contract. So even if Cruz is misinformed about the facts, that doesn’t mean his opinion about the case is wrong, since both the real facts and Cruz’s misunderstood facts impinge on the same right.

            I am not saying Cruz is right or wrong here. I am just saying his mistake is irrelevant to determining that.

            1. Granted, but if he doesn’t even have basic facts of the case straight, that hurts his credibility. And Root did give other links to arguments in favor of Lochner being a good, constitutional decision.

        6. Limiting the hours you work limits your wages.

          Your wages are the product of two factors (if you are paid hourly):

          (1) Your hourly rate, and
          (2) Your hours.

          However, if you are not paid hourly, limiting your hours doesn’t affect your wages.

          What’s more, “wages” often is used to refer only to the rate, as in “minimum wage” laws, which set a minimum hourly rate, but say nothing about minimum (or maximum) hours.

          1. However, if you are not paid hourly, limiting your hours doesn’t affect your wages.

            Sure RC because your productivity has nothing to do with your wages. Nothing at all. So limiting the hours you work could never affect your wages if you are salaried. Your employer will keep paying you the same for less work out of kindness I guess.

            You want to rethink that RC? I will give you a mulligan.

    4. also limits your wages

      No John, it doesn’t. May limit your income as derived from hours worked times wage. But it does not establish any kind of wage ceiling or floor. Cruz fucked this up pandering to the idiot base.

  13. 14th?

    Its easier to get there via the 1st or 9th.

    Contacts are a form of assocation. I guess you need the 14th to apply it to the states, but it aint hard.

    1. There is a case to be made for that. The problem is that I don’t think the people who wrote those amendments saw it that way and if they did they saw it that way in respect to the federal government not the states.

      Even with regard to the feds, you can’t say they recognized unlimited economic rights and rights to contract without reading the interstate and foreign commerce clause our of the document. If you have an absolute right to contract, how then does Congress also have the right to regulate commerce with foreign nations, among the states and with Indian Tribes?

      1. The sources I read may be wrong, but I recall somewhere reading that at the time those words were written, “regulate” meant “to make/keep regular,” not “to give permission and issue orders on a whim.”

        1. sarcasmic brings up an important point here.

        2. Even that infringes on your right to contract. They can charge you tariffs, make you trade only at certain times or through certain ports of entry. They can also ban the import or export of goods or embargo nations that we are at war with.

          1. Just a thought. If an embargo is considered to be an act of war by a government against another nation, what is a protective tariff other than other than an act of war by a government against its own people?

            1. It is in the words of our Chief Justice, a tax.

              1. It was a serious question.

                1. It is a serious answer. Tariffs are nothing but a tax.

                  1. But can’t they amount to an embargo if high enough? Is that not an act of war by a government against its own people?

                    1. I suppose. And if the government were a dictatorship where the people had no say, then you have a point. I think it is fair to say North Korea is effectively making war on its people by its refusal to accept any outside trade.

                      But if the government is a representative Republic, then the people really can’t say the government they voted for and can vote out is making war on them.

                    2. Most people are economic ignoramuses, and that’s something that governments rely upon. Even elected ones. People may clamor for a protective tariff to “protect jobs,” even if it amounts to an act of war on themselves. There is widespread support for the WoD, which is little more than a war on Americans who use and sell certain chemicals, the prosecution of which destroys the liberty and rights of everyone. Just because a government is elected and doing “The Will of the People” doesn’t mean it can’t take advantage of peoples’ ignorance and wage war on the very people who elected them.

                    3. If you say any government that doesn’t have 100% consensus is illegitimate, then no government is legitimate and you are an anarchist.

                    4. I’m suggesting that an act of war is an act of war. Doesn’t matter if it is imposed or requested. It’s still an act of war.

                      Unless you’re arguing that actions are to be judged differently depending upon who does them, who they are done to, and the intentions of the actor.

                    5. You might as well say that when a husband beats his wife it isn’t assault because she chose to marry him.

          2. Not if to make regular is interpreted as striking down impositions on trade authored by individual states, which has been my understanding.

            1. Yes but at least with regard to foreign countries and Indian tribes it meant more than that. The entire government was funded by tariffs in the beginning.

              1. High taxes put a man on the moon, John. When was the last time America put a man on the moon? It’s been ages. We need to raise taxes so we can put more men on the moon.

                1. When will you sheeple wake up and realize that we are putting hundreds of men on the moon every month to fight in a secret war with the Chinese on the far side of the moon?

                  1. Chinese? I thought it was the Nazis.

                    http://www.imdb.com/title/tt1034314/

                    I watched that on Netfix and it wasn’t terrible.

  14. Feeble attempts at Simpsons impersonations are what matters people, not this claptrap.

    1. HA-HA!

    2. Cow-a-bunga, my good fellow!

  15. I’d pay a hundred bucks to watch anybody here, or Rand Paul for that matte, debate Cruz on this subject.

    1. So would I. I doubt Reason has the influence to get Cruz to show up and I would be shocked if Root would have the stones to debate him if he did.

  16. Feels like Reason finally listened to the complaints about Trumpapalooza but now can’t find anything else to write about.

    1. Yeah.

      This just in, Ted Cruz moderately misstated the facts in a long overturned Supreme Court Case.

      How about this? This seems moderately important.

      Judicial Watch announced today that it has obtained documents from the Internal Revenue Service (IRS) that confirm that the IRS used donor lists to tax-exempt organizations to target those donors for audits. The documents also show IRS officials specifically highlighted how the U.S. Chamber of Commerce may come under “high scrutiny” from the IRS. The IRS produced the records in a Freedom of Information lawsuit seeking documents about selection of individuals for audit-based application information on donor lists submitted by Tea Party and other 501(c)(4) tax-exempt organizations (Judicial Watch v. Internal Revenue Service (No. 1:15-cv-00220)).

      http://www.judicialwatch.org/p…..et-audits/

      Maybe I am just foolish but it seems like a Libertarian publication would have an interest in writing about the IRS auditing donors to organizations critical of the President. But that is just me.

      1. Oh, you mean last year’s news? That’s just so, you know, then.

        1. Fake scandal and what difference does it make? The whole thing has been going on so long, can’t people just move on?

  17. From Damon’s first link:

    The indictment, it will be seen, charges that the plaintiff in error violated the one hundred and tenth section of article 8, chapter 415, of the Laws of 1897, known as the labor law of the State of New York, in that he wrongfully and unlawfully required and permitted an employe working for him to work more than sixty hours in one week. There is nothing in any of the opinions delivered in this case, either in the Supreme Court or the Court of Appeals of the State, which construes the section, in using the word “required,” as referring to any physical force being used to obtain the labor of an employe./

    I have been consistently misspelling “employe” for a long time.

  18. Odd to see people here attacking Lochner of all decisions just because Ted Cruz criticized it.

    1. I think like a lot of issues people are talking past each other. Cruz if you listen to his speech, spends most of his time going after modern substantive due process. He mentions Lochner but his big bitch is over the court deciding that the Constitution protects rights that are not there but the Court likes.

      Root and company love Lochner because it recognized economic rights. The really insulting thing about the post new deal Courts is that they overturned Lochner but didn’t give up on inventing rights when they decided they liked them. So the same court that wont’ recognize any economic rights and says the government can stomp all over them as long as there is some rational basis to justify it, invented all of these new and higher tests for rights to things like “privacy” and of course abortion and birth control and gay marriage and such.

    2. Root would bring back Lochner but also keep all of the rest. He would just make economic rights on the same level as abortion rights. That would at least initially be a lot better than we have today. Roots’ critics on here I think rightly worry that giving the court the right to create “rights” in economics probably would lead to them declaring a lot of positive rights that wouldn’t be very conducive to freedom.

      Cruz, would throw the whole thing out and say if the Constitution doesn’t in so many words say the government can’t do it, it doesn’t protect the right. Whether avoiding the danger of positive rights is worth that, is a question of which worse case you fear more I think.

      1. John,

        I don’t disagree with either of your posts here too much. I didn’t find your position in this thread unreasonable like Homple’s, who basically just referenced Cruz’s credentials, when everyone here knows there is no way in hell he would react the same way if a left-wing politician with Cruz’s legal credentials made the same argument against Lochner.

        1. Probably so. I think Damon wrote a dumb post that took a cheap shot at Cruz. But that is the debate going on here. And I am honestly not sure whose side I am on. For a long time I really liked Lochner. Now I am not so sure.

  19. All of you who play with Tulpa are worse than Tulpa.

    1. So you are calling us all Nikki? Is that what you are doing here?

  20. Sorry if anyone above has made this point:

    The only serious legal debates going on today (unless you count the “what should we make the Constitution mean today?” debates among leftists) are among libertarians and conservatives.

    A key part of this debate is judicially-enforced economic liberty.

    There are plenty of conservatives who support economic liberty but don’t want to encourage judicial activism. They believe that encouraging courts to strike down economic regulations will simply encourage their tendency to rewrite laws under the guise of interpreting them. Lochner today, Roe and Oberdorfer tomorrow.

    In contrast, the economic-liberty activists believe that the courts can observe the rule of law and enforce economic liberty at the same time, and the risk of giving aid and comfort to lefty activism is either non-existent or worth taking.

    I’m inclined to the latter view, in that the courts have managed to combine extreme lefty activism with a disregard for economic rights, so I don’t see how protection of economic rights can make things worse than they already are.

    1. That was my point made in response to Calidissident above.

      1. Like I said, I’m sorry if I was repeating anyone else’s point 🙁

Please to post comments

Comments are closed.