Lochner and Holmes

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Butler, the Lochner anniversary occurs shortly: April 17, 1905. Lochner did its share to hold back the deluge for almost 30 years. Oliver Wendell Holmes, Jr. surely deserves a Totalitarian of the Day Award on April 17 for his famous dissent in that case. He wrote “But a constitution is not intended to embody a particular economic theory, whether or paternalism…or of laissez faire.” He seems not to have understood that it was his job to employ the U.S. Constitution, not just any constitution.

He wrote that the “word liberty is perverted when it is held to prevent the natural outcome of a dominant opinion…” Here he forgot that majority rule doesn’t determine law, and he also forgot (if he ever knew) Exodus 23:2. He then tacked on a new extra-constitutional rational-basis test that gave him and other judges the leeway thereafter to approve unconstitutional social and economic legislation, writing, “unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.” Why not stick with the principles and limits in the Constitution? Which fundamental principles does he mean and how are we supposed to know whether or not they are understood by people’s traditions? Why, Justice Holmes will tell us.

1:58 pm on March 13, 2010