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08/08/2017

Mark Pulliam: Leaving Lochner Behind
Michael Ramsey

At Liberty Law Blog, Mark Pulliam: Leaving Lochner Behind.

What prompts a man to change his mind on a serious matter after 35 years, and should the reversal be met with pride (for eventually getting it right), or chagrin (for taking so long)? For reasons of vanity, I’m going to take a positive tack and choose the former.

“Wisdom,” Felix Frankfurter once remarked, “too often never comes, so one ought not to reject it merely because it comes late.” Allow me to explain.

Unlike most of my conservative colleagues, until recently I harbored sympathy for the pre-1937 notion that certain economic liberties are protected by the U.S. Constitution, even if they are not specifically mentioned (or, in constitutional law parlance, enumerated). ...

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... Since the Framers believed in freedom, and drafted a Constitution to preserve that freedom, I was willing to presume that they intended to protect voluntary contractual arrangements from political interference. Influenced significantly by [University of San Diego Law School Professor] Bernard Siegan’s vigorous defense of Lochner in his seminal 1980 book, Economic Liberties and the Constitution—a revelation in its day—I willingly suspended my disbelief and became an avid fan of the Lochner jurisprudence.

When, decades later, I revisited the subject of Lochner, as I did in a 2015 article in National Review, I toned down my 1982 zeal for substantive due process, stating simply that “most economic liberties and property rights unjustifiably lost their status as ‘fundamental rights’ in the 1938 Carolene Products decision, and the Court has improperly abdicated its duty to protect those rights.

Unlike my conservative colleagues, such as Ed Whelan, who support judicial restraint across the board, and libertarians who embrace the theory of unlimited “unenumerated rights” pioneered by Roger Pilon and Randy Barnett, I found myself awkwardly straddling both camps. I was the atypical conservative who supported Lochner (judicial protection for economic liberties) but not an open-ended license for making up new rights. ...

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After some reflection, I reluctantly—and belatedly—acknowledged that my straddle was untenable. The two camps are incompatible.

Given a choice between judicial restraint and judicial engagement, I chose restraint. Mea culpa. Frankly, in making this decision, I was swayed by an increasingly mutinous judiciary and the Left’s capture of legal academia.

Let me spell out other factors I considered.  ...