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THREE - Lochner and the Cast of Our Law

Published online by Cambridge University Press:  05 June 2012

Hadley Arkes
Affiliation:
Amherst College, Massachusetts
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Summary

I suppose I might have been asked to offer some reflections on the jurisprudence of Darth Vader, or to consider whether I might revisit the subject of dueling and say a few redeeming words for that institution, now faded. Or that is how the assignment might have appeared to many people when my friend, Robert George, asked me to speak in a series of lectures, at Princeton, on “landmark cases” in the law and revisit the legendary case of Lochner v. New York (1905). Yet that was an inspiriting offer, and too delicious to forgo. For Lochner must surely stand as one of the most reviled – and persistently misunderstood – cases in our constitutional law. And so I remarked to the audience assembled in Princeton that, in a series of lectures quite distinguished, I had received, without any particular merit, an assignment even more distinguished: I had been entrusted with the task of explaining the only case in the series that has been converted into a verb. No one has ever threatened “to Marbury” or “to Dred Scott it,” but as Robert Bork has observed, “to Lochnerize” has become a term of derision in those rare circles of people with an interest in constitutional law. Of course, Judge Bork ought to know, because his name too has been converted into a verb, and he has done Lochner one better: His name has become a transitive verb: “to bork” a candidate to the Supreme Court is to conduct an orchestrated campaign against confirmation.

Type
Chapter
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Constitutional Illusions and Anchoring Truths
The Touchstone of the Natural Law
, pp. 79 - 107
Publisher: Cambridge University Press
Print publication year: 2010

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References

Bork, Robert, The Tempting of America (New York: Free Press, 1990), p. 44Google Scholar
Noonan, Jr. John T., Narrowing the Nation's Power (Berkeley: University of California Press, 2002), p. 13Google Scholar
Wilson, James, “Of the Natural Rights of Individuals,” in The Works of James Wilson (Cambridge: Harvard University Press, 1967; originally published in 1804), Vol. 2, pp. 585–610, at 597Google Scholar
Kurland, Philip B. and Casper, Gerhard, eds., Landmark Briefs and Arguments of the Supreme Court (Arlington, Va.: University Publications of America, 1975), Vol. 14, pp. 654–699, at 654–56
Encyclopedia of the American Constitution, ed. Levy, Karst, and Mahoney, (New York: Macmillan, 1986), p. 1371
Mencken, H. L., “Mr. Justice Holmes,” in The Vintage Mencken (New York: Vintage Books, 1955), pp. 189–97, at 195Google Scholar
Siegan, , Economic Liberties and the Constitution (Chicago: University of Chicago Press, 1980), pp. 116–19Google Scholar
Mayer, David N., “The Myth of ‘Laissez-Faire Constitutionalism’: Liberty of Contract during the Lochner Era,” 36 Hastings Constitutional Law Quarterly217 (2009)Google Scholar
Rowe, Gary D., “Lochner Revisionism Revised,” 24 Law and Social Inquiry221 (1999)CrossRefGoogle Scholar
Bernstein, David, Only One Place of Redress (Durham and London: Duke University Press, 2001)Google Scholar

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  • Lochner and the Cast of Our Law
  • Hadley Arkes, Amherst College, Massachusetts
  • Book: Constitutional Illusions and Anchoring Truths
  • Online publication: 05 June 2012
  • Chapter DOI: https://doi.org/10.1017/CBO9780511777981.004
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  • Lochner and the Cast of Our Law
  • Hadley Arkes, Amherst College, Massachusetts
  • Book: Constitutional Illusions and Anchoring Truths
  • Online publication: 05 June 2012
  • Chapter DOI: https://doi.org/10.1017/CBO9780511777981.004
Available formats
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Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Lochner and the Cast of Our Law
  • Hadley Arkes, Amherst College, Massachusetts
  • Book: Constitutional Illusions and Anchoring Truths
  • Online publication: 05 June 2012
  • Chapter DOI: https://doi.org/10.1017/CBO9780511777981.004
Available formats
×