Today in Supreme Court History: February 23, 1905

2/23/1905: Lochner v. New York argued.

Comments

[Libertymike]

Three cheers and a 21-gun salute to Lochner!

Nothing but jeers for Holmes' dissent.

[Dilan Esper]

That's silly. Holmes is exactly right- the Constitution does not enact any particular economic theory.

That doesn't mean more recent stuff like Williamson v. Lee Optical is correct or that there is no room for economic liberty arguments under the Constitution. But striking down legislation regulating the workplace because of theoretical objections to limitations on oppressive contracts was a definite low point for the Court.

[Libertymike]

No, its not silly.

First, Holmes wrote, " but a constitution, is not intended to embody a particular economic theory." 198 U.S. at 76. He did not write " the constitution...."

Second, upon what basis could Holmes have predicated his position that "a constitution is not intended to embody a particular economic theory?" There is no grant of authority in the federal constitution given to the judiciary to declare that the constitution is not intended to protect and vindicate property interests.

Third, it is silly to rely upon Holmes' silly statement as the same is a chimera as the constitution specifically provides for the protection of private property.

[Dilan Esper]

1. A constitution implies this constitution.

2. Marbury v. Madison, which is based on Article III and 500 years of common law history in England and the Colonies.

3. Protection of private property is not absolute. Indeed, the Constitution says this. Neither the Due Process Clause nor the Takings Clause provide absolute protections. Neither does the Excessive Fines Clause for that matter.

At most, you can say that the Constitution does not permit an economic philosophy like totalitarian communism that is completely disrespectful of private property. But it permits quite a lot of regulation and doesn't choose among economic theories beyond that.

[Libertymike]

1. There is a difference between "a constitution" and "the constitution." "A" cat does not imply that "the" cat is one and the same. Words matter. We should not excuse lexical laziness or imprecise prose. Particularly from a supreme court justice.

2. Please explain how Marbury vs. Madison supports the proposition that the text of the federal constitution's Bill of Rights does not provided for the protection of private property.

3. You are the one broaching the issue that the constitution does not afford absolute protection of private property. Having raised the issue, I note that neither the first nor the second admit of any exceptions whereas the 4th and the 5th provide for qualifiers. Of course, the 9th, on its face, is absolute.

3.

[Libertymike]

You do know that the New York Bake Shop Act was the brainchild of bakers' unions and large bakeries which sought to make the cost of doing business prohibitive for small bakeries. Nothing noble about that.

[Dilan Esper]

So what?

The economic substantive due process doctrine was the brainchild of lawyers and legal thinkers with significant connections to the economic and business elites of the United States.

The point is, nothing in the Constitution actually prohibited a state government from setting maximum hours for bakers.