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). I credit Clark Neily—the libertarian author of Terms of Engagement (2013)—for finally persuading me of the correctness of Robert Bork’s objection to “substantive due process” theories, such as the one employed by the U.S. Supreme Court in Lochner v. New York (1905), on the ground that they are untenable and ineluctably lead to decisions like Griswold v. Connecticut (1965), Roe v. Wade (1973), and Obergefell v. Hodges (2015). But I get ahead of myself . . .
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