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Un-‘Loch’-ing Liberty

Here’s a letter to the Washington Post:

George Will eloquently summarizes the lesson of my GMU colleague David Bernstein’s powerful book Rehabilitating Lochner (“Lochner and Liberty,” Sept. 8).  David’s book centers on the 1905 U.S. Supreme Court decision that properly affirmed, in accord with the Ninth amendment, what Mr. Will accurately describes as “an unenumerated right of individuals, the liberty of contract.”

For this reason, Lochner has indeed been “the liberals’ least favorite decision.”

But many conservatives – including Chief Justice Roberts and Justice Scalia – routinely join “Progressives” in bashing Lochner.  No less a conservative icon than Robert Bork derides Lochner as being “the symbol, indeed the quintessence, of judicial usurpation of power.”*

This overreaction by conservatives to Warren Court hyperactivity injudiciously expels the Ninth and Tenth amendments from the Constitution and, consequently, elevates majoritarian politics to a role in Americans’ lives that would appall the very framers whose constitutional design conservatives claim to champion.

Donald J. Boudreaux

* Robert Bork, The Tempting of America (New York: Free Press, 1991), p. 44.