Rise of the Lochner Monster

[ksen]

First, what is Lochner?

Lochner refers to a Supreme Court case from the early 20th century: Lochner v New York.

From the link:

Lochner v. New York, 198 U.S. 45 (1905), was a landmark United States Supreme Court case that held that "liberty of contract" was implicit in the Due Process Clause of the Fourteenth Amendment. The case involved a New York law that limited the number of hours that a baker could work each day to ten, and limited the number of hours that a baker could work each week to 60. By a 5–4 vote, the Supreme Court rejected the argument that the law was necessary to protect the health of bakers, deciding it was a labor law attempting to regulate the terms of employment, and calling it an "unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract."

Lochner is one of the most controversial decisions in the Supreme Court's history, giving its name to what is known as the Lochner era. In the Lochner era, the Supreme Court issued several controversial decisions invalidating federal and state statutes that sought to regulate working conditions during the Progressive Era and the Great Depression.

Ok, so? Obviously liberals and progressives would think Lochner was a bad decision but why would conservatives and libertarians? This ruling seems to be right in their wheelhouse.

Not so.

Lochner was held up as an example of how the Supreme Court should not rule by liberals and conservatives alike. In fact they rank Lochner right up there with Plessy v Ferguson, Brown v Board of Education and Korematsu v United States.

However, it has come under harsh criticism from conservative and libertarian jurists as well. For example, conservative legal scholar Robert Bork called the decision an "abomination" and the "quintessence of judicial usurpation of power."[7][8] Similarly, former Attorney General Edwin Meese said that the Supreme Court "ignored the limitations of the Constitution and blatantly usurped legislative authority."[9] Siegan, a self-described libertarian, described it as "a symbol of judicial dereliction and abuse."[4]

Why am I even bringing this up? Obviously Lochner has been assigned to the ash heap of history. Right?

Not necessarily.

Just like Michael Myers or Jason Voorhees when you think something is dead it's not necessarily dead.

In the Washington Post George Will writes that what the country needs is more decisions like Lochner.

Today’s most interesting debate about governance concerns a 110-year-old Supreme Court decision. Two participants in this debate are the chief justice of the U.S. Supreme Court and a justice on the Supreme Court of Texas. The latter is trouncing the former.

In his same-sex marriage dissent, John G. Roberts Jr. repeatedly denounced, with more animus than understanding, the U.S. Supreme Court’s 1905 Lochner decision. In a recent opinion concerning occupational licensing in Texas, Justice Don Willett of the Texas Supreme Court demonstrates why the United States urgently needs many judicial decisions as wise as Lochner.

George Will even goes so far as to recommend making Lochner a litmus test for Republican presidential candidates.

The next Republican president should ask this of potential court nominees: Do you agree that Lochner correctly reflected the U.S. natural rights tradition and the Ninth and 14th amendments’ affirmation of unenumerated rights? To his first nominee, however, this president should simply say, “Welcome to Washington, Justice Willett.”

Will's wing of the Republican party would like nothing better than to see the United States return to the golden days of contract freedom where workers were free to enter into contracts for 12-16 hour work days in a business free of onerous safety regulations for as little as they freely want to be paid.

Lochner is the flux capacitor of the free market conservatives designed to take us back to the future of a laissez-faire worker's paradise.

 

[ksen]

Guys, this was one of my better written OPs and I'm a little disappoint I didn't even get any pity replies.

 

[bilby]

Guys, this was one of my better written OPs and I'm a little disappoint I didn't even get any pity replies.

I beg to differ. The style is that of the worst tabloid political propaganda, with flowery prose, tangentially relevant pictures, tortured metaphors, and only the tiniest pinch of real substance.

You can do, and frequently have done, far better than this.

If you were aiming to emulate the most common style of political discourse, then, sadly, you succeeded.

If you think that that goal is desirable, then you are sadly mistaken.

 

[ksen]

THAT'S what I'm talkin' about! :hug:

 

[bilby]

THAT'S what I'm talkin' about! :hug:

 

[untermensche]

Within a capitalist top-down system there will always be strife between so-called labor and so-called management since one purpose of capitalist institutions is to exploit human labor so a few can increase their individual wealth. They are merely elaborate schemes to do this.

The Supreme Court becomes the referee in this continual struggle.

These decisions are definitely important.

 

[dismal]

Guys, this was one of my better written OPs and I'm a little disappoint I didn't even get any pity replies.

I beg to differ. The style is that of the worst tabloid political propaganda, with flowery prose, tangentially relevant pictures, tortured metaphors, and only the tiniest pinch of real substance.

You can do, and frequently have done, far better than this.

If you were aiming to emulate the most common style of political discourse, then, sadly, you succeeded.

If you think that that goal is desirable, then you are sadly mistaken.

But it's a ksen thread(tm) so you know if you engage him he's going to feature carefully considered knowledge and depth of thought on all relevant arguments on the various positions one could have on the issue.

 

[thebeave]

I beg to differ. The style is that of the worst tabloid political propaganda, with flowery prose, tangentially relevant pictures, tortured metaphors, and only the tiniest pinch of real substance.

You can do, and frequently have done, far better than this.

If you were aiming to emulate the most common style of political discourse, then, sadly, you succeeded.

If you think that that goal is desirable, then you are sadly mistaken.

But it's a ksen thread(tm) so you know if you engage him he's going to feature carefully considered knowledge and depth of thought on all relevant arguments on the various positions one could have on the issue.

This thread seems to not be about his hatred of white people and/or cops. Refreshing to see a little variety.

 

[arkirk]

Guys, this was one of my better written OPs and I'm a little disappoint I didn't even get any pity replies.

I beg to differ. The style is that of the worst tabloid political propaganda, with flowery prose, tangentially relevant pictures, tortured metaphors, and only the tiniest pinch of real substance.

You can do, and frequently have done, far better than this.

If you were aiming to emulate the most common style of political discourse, then, sadly, you succeeded.

If you think that that goal is desirable, then you are sadly mistaken.

.....and when you connected it with George Will....well what else is there to say?

 

[Rhea]

Wow, I didn't know this existed. It seeks to elevate the unequal bargaining power between corporation and human to create near slave labor conditions.

 

[whichphilosophy]

Within a capitalist top-down system there will always be strife between so-called labor and so-called management since one purpose of capitalist institutions is to exploit human labor so a few can increase their individual wealth. They are merely elaborate schemes to do this.

The Supreme Court becomes the referee in this continual struggle.

These decisions are definitely important.

I compared Western societies to those my Arab colleagues come from and proposed by view why the West is better off. In the West a little more filters to employees who spend the money in the community. This creates more jobs and thus more income. In poor countries such as Egypt (with by the way some brilliant people) employees get paid peanuts so spending is very limited, thus less other jobs are created.

 

[fromderinside]

Within a capitalist top-down system there will always be strife between so-called labor and so-called management since one purpose of capitalist institutions is to exploit human labor so a few can increase their individual wealth. They are merely elaborate schemes to do this.

The Supreme Court becomes the referee in this continual struggle.

These decisions are definitely important.

I compared Western societies to those my Arab colleagues come from and proposed by view why the West is better off. In the West a little more filters to employees who spend the money in the community. This creates more jobs and thus more income. In poor countries such as Egypt (with by the way some brilliant people) employees get paid peanuts so spending is very limited, thus less other jobs are created.

Wasn't it in the 1890s ("Eight Hours of Work" https://books.google.com/books?hl=e...ts=6zhzrIxz1z&sig=n_BLA3lcjPrH2OLOC4ZmxNQ8fF0) that research showed employee productivity dropped sharply and accident incidents increased significantly after 8 hours of continuous labor? So the USSC was still anti-science way back in the day.