The web log for Prof. Duncan's Constitutional Law Classes at Nebraska Law-- "[U]nder our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution's focus upon the individual. In the eyes of government, we are just one race here. It is American. " -----Justice Antonin Scalia If you allow the government to take your liberty during times of crisis, it will create a crisis whenever it wishes to take your liberty.
Friday, February 03, 2023
Lochner and Public Morality
Did Lochner hold that public morality is not a legitimate basis for laws designed to protect the rights of employees or to achieve social justice?
Take a look at this passage on p. 503:
"The question whether this act is valid as a labor law, pure and simple, may be dismissed in a few words. There is no reasonable ground for interfering with the liberty of persons or the right of free contract, by determining the hours of labor, in the occupation of a baker."
Do you agree that it is illegitimate for the government to regulate business based upon the Legislature's understanding of public morality and social justice?
Now consider Justice Holmes's famous dissent on p. 506: "The 14th Amendment does not enact Mr. Herbert Spencer's Social Statics."
What does that mean?
Does the 14th Amendment enact any other particular ideology? For example, would you agree with Justice Holmes if he had said: "The 14th Amendment does not enact Mr. Vatsyayana's Kama Sutra nor Mr. Hefner's Playboy Philosophy?"
Or does the 14th Amendment codify the Kama Sutra? Be patient. We shall see.
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