Lochner? I hardly even know of that legal opinion

September 1, 2015 7:58 PM

Barnett believes the Constitution exists to secure inalienable property and contract rights for individuals. This may sound like a bland and inconsequential opinion, but if widely adopted by our courts and political systems it would prohibit or call into question basic governmental protections—minimum wages, food-safety regulations, child-labor laws—that most of us take for granted. For nearly a century now, a legal counterculture has insisted that the whole New Deal project was a big, unconstitutional error, and Barnett is a big part of that movement today.

posted by Rustic Etruscan (59 comments total)

This kind of thing sounds about a step away from Freemen On The Land.


(Note: not to be confused with Fremen on the land. Bless the Maker and His water. Bless the coming and going of Him. May His passage cleanse the world. May He keep the world for His people.)
posted by TheWhiteSkull at 8:04 PM on September 1, 2015 [41 favorites]

"Legal counterculture" means "ignoring decades of precedent and Supreme Court decisions and living in a delusional alternate reality", right?
posted by murphy slaw at 8:09 PM on September 1, 2015 [46 favorites]

Raisins, Regulations, and Politics in the Supreme Court

Erik Loomis: Creeping Lochnerism

Ilya Somin: Why the consensus against Lochner v. New York is beginning to fray
posted by the man of twists and turns at 8:12 PM on September 1, 2015 [5 favorites]

"Legal counterculture" means "ignoring decades of precedent and Supreme Court decisions and living in a delusional alternate reality", right?

No. As the article says, they are sensible people who are cool. The New Deal was actually #bad everybody
posted by Rustic Etruscan at 8:13 PM on September 1, 2015 [5 favorites]

"Legal counterculture" means "ignoring decades of precedent and Supreme Court decisions and living in a delusional alternate reality", right?

It's much more insidious than that because they are t content to live in an alternate reality, they are creating a new reality and using tremendous means to do so. Every top law school in the country is infected with Koch funded groups that organize conferences, free trips, summer programs in nice locales, and many more seminars etc. The legal community was liberal all through the 70's but that has changed a lot.

There is no liberal alternative and the counter culture reality is on a path to become the real reality.
posted by chaz at 8:22 PM on September 1, 2015 [14 favorites]

This sounds insane, but the next President WILL get at least one, and possibly up to FOUR Supreme Court appointments (Ginsburg, Kennedy and Scalia will be 80, and Breyer 79 by 2016). These are the kinds of legal minds that the Koch brothers are trying to buy the election to install on the Supreme Court.

One appointment will upset the long running 5-4 pseudo-deadlock, especially if that one is Kennedy, or across the aisle (Clinton replacing Scalia, or Walker replacing Ginsburg). 2-4? That's a whole new world. President Trump, Walker or Rubio buying into the anti-Lochner movement and and appointing Randy Barnett and 2 more Federalist Supremacy approved Justices could provoke a constitutional crisis.

Far-fetched? You'd think, but then again, you're not a billionaire libertarian hell bent on destroying the welfare state with enough money and conviction to pay 1000 law professors to concoct a legal theory to implement your self-serving policy goals.
posted by T.D. Strange at 8:22 PM on September 1, 2015 [80 favorites]

This would be the 'fuck you, I got mine' school of thought, yes?
posted by Mary Ellen Carter at 8:26 PM on September 1, 2015 [8 favorites]

I've always thought the construction of the welfare state was one of the great accomplishments of western civilization and one of the few good things to come out of the an otherwise disasterous twentieth century. It saddens me to think of all that progress undone and ironically I feel like Burke, yelling at these radicals that they have no right to tear down what past genrations had built and bequeathed.
posted by boubelium at 8:34 PM on September 1, 2015 [45 favorites]

Under the Lochner doctrine would so-called right-to-work laws be prohibited? Because what you have there is the state intervening in private-party contracts. Libertarians believe that union security clauses, or any other mutually-agreed-to contract terms, should be allowed to stand, right?
posted by univac at 8:40 PM on September 1, 2015 [2 favorites]

The thing is, they aren't entirely wrong.
The Constitution, and the Commerce Clause in particular, _has_ been bent all kinds of ways to make our modern country possible.

On a practical level, the country is decidedly better off for it.
Philosophically, I'm uncomfortable with how many things we imagine into the Constitution.
posted by madajb at 8:41 PM on September 1, 2015 [2 favorites]

The thing is, they aren't entirely wrong.

Yes, they actually are. There is no higher power to appeal to beyond the Supreme Court, and it has ruled that these uses of the commerce clause are constitutional. You can use your own definition of what you believe to be constitutional based on what you imagine the framers' intent would be, your own legal theories, or something you read somewhere on the Internet, but that doesn't change what the actual rules of the game are. SCOTUS decides what's constitutional, and if the other branches don't like it, they can work to constrain SCOTUS using their powers as a co-equal branch, e.g. via Constitutional amendment.
posted by tonycpsu at 8:54 PM on September 1, 2015 [33 favorites]

The Constitution has been understood to be a living document (and body of law) since Marbury. Although certain segments of the Kochfederalbrtarianstablismstan would argue that that decision too was wrongly decided.
posted by T.D. Strange at 8:59 PM on September 1, 2015 [7 favorites]

Yeah, I don't think Lochner is as simple as this ideological battle. There are plenty of people who oppose it for reasons that lack nuance. There are plenty more who support it for reasons just as wrongheaded. I feel like the only real answer is to go back to the history the just predates Lochner, which is not what anyone wants to pretend it is, and to meanwhile accept that there is no original foundation of the Constitution that makes sense as a universal principle of all time outside the interpretations given it in a time and place - in other words, that this whole kit and caboodle has been shifting and reforming from the very first moment.
posted by koeselitz at 9:06 PM on September 1, 2015 [1 favorite]

The thing is, they aren't entirely wrong.

Yes, they actually are.

Saying "their interpretation holds because they're the Supreme Court" is obviously true and also obviously besides the point
posted by skewed at 9:12 PM on September 1, 2015 [8 favorites]

Surely there must be a guillotine kit available somewhere on the internet...at least a simple set of do-it-yourself instructions, no?
posted by sexyrobot at 9:17 PM on September 1, 2015 [4 favorites]

Strict constructionalists should all be sent through a time machine to relive one or more of the following: the thirty years war, the English civil war, really any of the 14th or 15th Centuries, and to be fully educated in the Classics, most especially the fall of the Roman Republic and the travesties of Empire (and hey, eventual fall thereof).
Once they have some freaking context of what a committee of what were effectively traitors were actually trying to accomplish, then they can talk. Until then, they can take their strict constructionist viewpoints and...
Of course, I had one of these jokers as a Con Law prof in law school, and I've never met a bigger bully. I might still be looking for revenge.
posted by susiswimmer at 9:25 PM on September 1, 2015 [23 favorites]

We're trying to have a civilization here.
posted by The Underpants Monster at 9:30 PM on September 1, 2015 [41 favorites]

Randy Barnett is a smart guy whose writing I have enjoyed from time to time, but like all smart guys he has some strong opinions about big ideas, kind of like a music nerd who goes on and on about how much The Beatles suck.
posted by rhizome at 9:35 PM on September 1, 2015 [4 favorites]

That said, sweeping away all those regulations would probably do wonders for American competitiveness. Wages will plummet, costs of doing business (like not dumping toxic waste willy-nilly) will go away, and pretty soon industrial costs in the US will be on par with the poorer regions of Bangladesh, India, and China.

Whether that's a good thing or not, well, that's up to people who are allowed to have opinions to decide. And by people, I mean corporations.

Unless you're a rich sociopath, it's most obviously not a good thing.
posted by Beholder at 9:39 PM on September 1, 2015 [6 favorites]

Of course the New Deal was unconstitutional. That's why FDR had to stack the supreme court. But the constitution has been dead for a long time. To even worry about the "constitutionality" of government action is to take the bible literally.
posted by king walnut at 9:42 PM on September 1, 2015 [3 favorites]

Can't wait for Worthington's Law to rule the land. More money == better than. Will make being an oligarch so useful, at least for a short while.
posted by fifteen schnitzengruben is my limit at 9:46 PM on September 1, 2015

kind of like a music nerd who goes on and on about how much The Beatles suck.

Except in this case, "The Beatles Suck" is actually, "Child Labor laws are wrong". John Cusack in High Fidelity wasn't working to repeal the minimum wage, Social Security, Medicare, Medicaid and the SEC, Randy Barnett is.
posted by T.D. Strange at 9:51 PM on September 1, 2015 [24 favorites]

That's why FDR had to stack the supreme court.

Where did your grade school get its history books? FDR's court packing plan was not successful.
posted by tonycpsu at 9:54 PM on September 1, 2015 [24 favorites]

I don't think Howard Zinn's view of the intent of the founding fathers is all that different from this guy's, but Zinn recognized the essential monstrosity of that intent -- and those men.
posted by jamjam at 9:54 PM on September 1, 2015 [8 favorites]

king walnut: "Of course the New Deal was unconstitutional. That's why FDR had to stack the supreme court. But the constitution has been dead for a long time. To even worry about the 'constitutionality' of government action is to take the bible literally."

I think I take your point, but it probably should be mentioned that FDR actually failed to stack the Supreme Court; even the Democrats wouldn't put up with that scheme, so it was scrapped. Also, I'm not entirely sure all the founders really thought the commerce clause was supposed to be a little thing that didn't determine all of government - cf. John Marshall, my vote for the greatest founder. But that might be what you meant, reinterpretation being what it is.
posted by koeselitz at 9:57 PM on September 1, 2015 [6 favorites]

Monstrosity? Oof. This is why Howard Zinn is a terrible historian: he has no vision whatsoever, only ideology.
posted by koeselitz at 9:59 PM on September 1, 2015 [5 favorites]

Surely there must be a guillotine kit available somewhere on the internet...at least a simple set of do-it-yourself instructions, no?

look on Tumbrel
posted by thelonius at 10:07 PM on September 1, 2015 [7 favorites]

but Zinn recognized the essential monstrosity of that intent -- and those men.

More succinctly.
posted by rhizome at 10:13 PM on September 1, 2015 [2 favorites]

Monstrosity? Oof.

You do recall that Jefferson's slave mistress Sally Hemings -- whom by any reasonable standard he can only be said to have raped innumerable times over decades -- was a wedding gift from his father-in-law, and appears to have been Jefferson's white wife's half-sister?
posted by jamjam at 10:18 PM on September 1, 2015 [10 favorites]

We are as far from the "founding fathers" as they were from 1558. when Elizabeth 1 was crowned? The Enlightenment was still in the future because Galileo hadn't been born yet. The Renaissaince was still a big deal, because heck, Michelangelo was still alive. More importantly, the Protestant Reformation had just happened, and Inquisition had just been re -instituted to fight it.

I hope to all things holy that we have advanced as much in our way of seeing the world as the participants of the Constitutional Convention were from 1558. And quite frankly, I think that's the whole damn point.
posted by susiswimmer at 10:48 PM on September 1, 2015 [12 favorites]

Apologies that I cannot spell. I hereby restrict myself from posting when I've had more than one glass of wine.

I expect this will last about a week.
posted by susiswimmer at 10:55 PM on September 1, 2015 [1 favorite]

We are as far from the "founding fathers" as they were from 1558. When Elizabeth 1 was crowned?
Not nearly far enough back. For these people, the Prefect form of Capitalism flourished in the 9th to 15th Centuries... it was just called Feudalism then.
posted by oneswellfoop at 11:04 PM on September 1, 2015 [12 favorites]

Heh. I was just counting actual number of years.
posted by susiswimmer at 11:15 PM on September 1, 2015

I think people who write like this kind of thing should be forced to live poor for ten years. Then let's talk - I can't see this kind thinking as anything but the distilled voice of privilege.
posted by From Bklyn at 11:17 PM on September 1, 2015 [5 favorites]

Every top law school in the country is infected with Koch funded groups that organize conferences, free trips, summer programs in nice locales, and many more seminars etc.

Even outside the top schools, it disturbed me a lot that the Federalist Society at my third-tier school attracted huge crowds by bringing in outside money to be able to cater all their events with stuff like Chipotle, when all the other groups were struggling to afford pizza. And then their events would be stuff like "we brought in this important conservative scholar on X and he'll 'debate' with one of our overworked con law professors about a subject with vastly disproportionate resources and preparation".

They're not trying to win by having better arguments, they're trying to win by just buying the whole next generation of attorneys. With the world being the way it is right now for law students, you've got all these privileged upper-middle-class white kids in law school who are facing real economic uncertainty for the first time, and then people plying them with this idea that everything they feel entitled to would be guaranteed by this new conservative utopia.
posted by Sequence at 11:21 PM on September 1, 2015 [28 favorites]

The problem here is pretty simple -- do we abide by stare decisis, a fundamental precept of common law for many centuries, or ignore it as the composition of the court provides the votes to do so? Whether the Supreme Court's decision to OK the New Deal a suspiciously short time after Roosevelt proposed court packing was a correct or incorrect constitutional outcome isn't the thing -- it is how unstable and dependent on politics and changeable we are willing to let basic constitutional law become.

I don't care if the Supreme Court was wrong to overturn Lochner -- though the principle on which it was based, substantive due process as a means to protect monied interests, seems bereft of sound textual or historic footing -- but I sure as heck care if it soon begins reinstating what has been discredited law for nearly a century. If that happens, our law will lose all stability, predictability, and trustworthiness.

There is no rule of law, in short, if we tear up what we have every time the political winds shift.
posted by bearwife at 11:30 PM on September 1, 2015 [15 favorites]

In the estimable words of the great Charles P. Pierce, "These really are the fking mole people."
posted by ob1quixote at 12:20 AM on September 2, 2015 [3 favorites]

The Universal Basic Income would still be legit, right? That's not a law, it's just the government taxing people and giving the money back out. Wouldn't that be hilarious if the Kochs managed to get their way only to have a UBI sweep them away.

please leave me my dreams.
posted by freyley at 12:29 AM on September 2, 2015 [1 favorite]

FDR's court packing plan was not successful.

https://en.wikipedia.org/wiki/The_switch_in_time_that_saved_nine

I'm uncomfortable with how many things we imagine into the Constitution

agreed; I wish this nation had the political maturity to rework our constitution -- ie. everyone was on the same page as me -- but we don't, and democracies can't really function when the electorate is so bitterly divided.

Weimar's slide into Godwinism is one future for us here.
posted by Heywood Mogroot III at 1:00 AM on September 2, 2015 [1 favorite]

Under the Lochner doctrine would so-called right-to-work laws be prohibited?

Its purpose would be eliminated, since the NLRA, which forces employers to negotiate with unions, would be struck down.

Right to work restricts the right to contract in order to mitigate the effects of another restriction on the right to contract.
posted by jpe at 3:23 AM on September 2, 2015 [2 favorites]

I'm all for a strict interpretation of the constitution. Lets start by giving the Louisiana Purchase back to France. And a chunk of Georgia to the Cherokee.
posted by Hactar at 5:21 AM on September 2, 2015 [4 favorites]

I tend to agree that the modern reading of the Commerce Clause is absurdly overbroad compared to its intended meaning, and still a stretch under a living-Constitution model, but the laws passed under it have demonstrably improved life for basically all Americans who work outside of boardrooms (and many who do). If the Supreme Court suddenly rejected that reading and revived Lochner I hope we'd see a Constitutional amendment to restore the status quo, because if minimum wage laws and 40-hour work weeks and recognition of unions aren't constitutional the Constitution needs to change.
posted by Holy Zarquon's Singing Fish at 5:37 AM on September 2, 2015 [6 favorites]

I find the weight borne by the commerce clause interesting as a historical question. It is very clear that capitalism has an influence on most, if not all, aspects of life in contemporary society, from the workplace to environmental policy to the types of culture that are visible or invisible. I don't have the historical background to assess how different that is compared to the time of the Founding Fathers, and I don't want to naïvely assume that capitalism's influence is a modern thing, but I wonder if part of the disproportionate burden placed on the commerce clause is an effect of economic structures playing a greater role in civil society than in earlier times.
posted by philosophygeek at 6:05 AM on September 2, 2015 [3 favorites]

Under the Lochner doctrine would so-called right-to-work laws be prohibited?

No need. Your employer could just fire you for joining the union.
posted by mygoditsbob at 6:48 AM on September 2, 2015

Good lord, the lengths people go to, to try and fuck other people over. It must be exhausting.
posted by The Card Cheat at 7:02 AM on September 2, 2015 [4 favorites]

jamjam: “You do recall that Jefferson's slave mistress Sally Hemings -- whom by any reasonable standard he can only be said to have raped innumerable times over decades -- was a wedding gift from his father-in-law, and appears to have been Jefferson's white wife's half-sister?”

Yes, everyone knows that. And everyone should also know that Jefferson did worse than that in his policies after the founding, which certainly contributed directly to the Confederate ideology that propped up the South in the decades leading up to the Civil War. But to conflate that with what was actually done at the founding is to evince utter ignorance of political theory or the mechanics of justice.
posted by koeselitz at 7:36 AM on September 2, 2015 [1 favorite]

Moreover, do you really suggest that Madison's pleas for an end to slavery were not sincere? Do you really think the anti-slavery contingent was actually faking it? That's what Zinn argues – that they were actually just acting in their interest, and would never have ended slavery given the choice – and it's utterly and completely balderdash. The tension between slavery and anti-slavery existed even then, and considering the financial powers involved it was a miracle the anti-slavery contingent managed to shoehorn in an agreement to limit the time during which slavery would be recognized as valid. They were hoping that the cause against slavery would gain enough economic force in the interim to overcome that vile institution. That wasn't a terrible thing to hope, and their force of will – Madison's force of will in particular – was what allowed this nation to eventually overturn slavery and move on from it.
posted by koeselitz at 7:41 AM on September 2, 2015 [3 favorites]

https://en.wikipedia.org/wiki/The_switch_in_time_that_saved_nine

Yes, and if you kept reading, you'd have seen the part where Roberts denied that FDR's actions had anything to do with his shift in jurisprudence, calling such reasoning post hoc ergo propter hoc. But never let the facts get in the way of a good story, right?
posted by tonycpsu at 8:00 AM on September 2, 2015

compared to its intended meaning
philosophygeek

And what is that intended meaning? If you have access to that, you could settle a lot of debates.

"Original intent" Originalism was largely discredited in the late 80s/early 90s.
posted by Sangermaine at 8:05 AM on September 2, 2015

Strict constructionalists should all be sent through a time machine to relive one or more of the following:

As I've said before, what "strict constructionalists" think the Constitution means has nothing whatsoever to do with what the actual founders intended the Constitution to mean, and everything to do with what the "strict constructionalists" thought the Constitution meant upon their own first reading--ie, typically when they were 8 or 12 or 14 years old.

Everything that pushes them to revise that original naive, immature understanding is explained away as "revisionism" because it makes them feel uncomfortable and like they were not always as smart as possible at every possible moment of their life.

This explains a lot.
posted by flug at 8:11 AM on September 2, 2015 [2 favorites]

I'll try to be sympathetic when strict constitutional wonks lose family members to cholera, or die of complications from tainted food.
posted by clvrmnky at 8:18 AM on September 2, 2015

Philosophically, I'm uncomfortable with how many things we imagine into the Constitution.

I pretty much disagree with this. The constitution is a relatively short document. (Compare to the EU constitution at 70,000 words, just shorter than the first Harry Potter book) The purpose of the U.S. constitution is to outline a set of basic principles regarding separation of powers and succession and serves as a guide for decided how to resolve issues of the day. It's not a point-by-point contract to resolve every possible contingency. And the proof is in the pudding: it is the oldest national constitution and hasn't been overthrown and rewritten multiple times like plenty of other constitutional republics have gone through. That's because of the constitution's inherent flexibility. Demanding that we go back to some earlier interpretation and stick to it, making it impossible to bypass is pretty much asking for a major constitutional crisis.
posted by deanc at 8:23 AM on September 2, 2015 [9 favorites]

I'm all for a strict interpretation of the constitution. Lets start by giving the Louisiana Purchase back to France. And a chunk of Georgia to the Cherokee.

The essence of conservatism is about locking in the gains that the social and economic elites acquired through whatever means they were able to and demanding that everyone else stick to the systems and rules that the elites themselves created once they assumed power.
posted by deanc at 8:29 AM on September 2, 2015 [17 favorites]

There is no liberal alternative and the counter culture reality is on a path to become the real reality.

fwiw (if you see the tech elite as some kind of antidote -- as they see themselves! -- to ancien régime counter revolutionaries ;)
-Woz comes out for Bernie Sanders
-Elon Musk says humanity is currently running 'the dumbest experiment in history'
-One of Facebook's founders is taking on the Federal Reserve
-The Federal Reserve and the 'Fed Up' campaign
posted by kliuless at 8:42 AM on September 2, 2015 [3 favorites]

Awesome links kliuless! Not sure if they directly tie into the original topic or not though - can you elaborate on how they connect to the OP?
posted by thebotanyofsouls at 9:15 AM on September 2, 2015

thebotanyofsouls... suggestion: see here and then scroll up?
posted by Mister Bijou at 9:32 AM on September 2, 2015

it disturbed me a lot that the Federalist Society at my third-tier school attracted huge crowds by bringing in outside money to be able to cater all their events with stuff like Chipotle, when all the other groups were struggling to afford pizza.

Oh, there were a lot of us at my law school that were deliberately hitting the Federalist Society up for as much free food as possible, with the idea that the Federalist Society buying us food was the least objectionable thing it could be doing with its money. The plan was always: eat now, mock later.
posted by asperity at 9:52 AM on September 2, 2015 [6 favorites]

> And the proof is in the pudding: it is the oldest national constitution and hasn't been overthrown and rewritten multiple times like plenty of other constitutional republics have gone through. That's because of the constitution's inherent flexibility.

That flexibility cuts both ways, of course. If it's merely a structure that dictates a basic shape, then the upside is an ability to adapt with the times. But the downside is that justices can reshape the details at any time however they see fit. In theory, stare decisis says they should defer to the decisions of their predecessors, but that's not absolute, nor should it be, unless you wanted Plessy to have won out over Brown v. Board.

The end result is that whole branches of constitutional thought, including incorporation (the idea that most constitutional amendments are binding on both the federal government and the states) and substantive due process (that the Fourteenth Amendment says that laws which infringe on certain fundamental rights are presumptively unconstitutional) can fall out of fashion just as easily as spats and pocket watches.

I've long felt that the right to privacy, which has been justified by courts in various ways over the last few decades, should be spelled out explicitly in the Constitution in order to remove all doubt. Of course, that won't happen; we've put all the flexibility into the interpretation of the document because the actual text of the document is so difficult to change.

I'm not saying we should have to rewrite the Constitution every generation or two, as in Europe, but at least European nations are not having inane discussions over whether they're technically allowed to give everyone health insurance.
posted by savetheclocktower at 10:46 AM on September 2, 2015 [2 favorites]

I'm not saying we should have to rewrite the Constitution every generation or two, as in Europe, but at least European nations are not having inane discussions over whether they're technically allowed to give everyone health insurance.

Neither was the US.
posted by gyc at 12:59 PM on September 2, 2015