Magazine | August 29, 2011, Issue

Letters

Lochner in Rehab

Reading Joseph Tartakovsky’s review of David Bernstein’s Rehabilitating Lochner (“Rights Revisited,” July 4), I got the sense that both gentlemen embrace the proposition that the 1905 Lochner decision was “a defensible application of a long-standing natural-rights tradition of individual liberty” and “that the logic of ‘liberty of contract’ is really the logic of unenumerated rights . . . whose existence we deduce from proper understandings of liberty.”

First of all, the Lochner decision — in which the Supreme Court struck down a state law limiting how many hours bakery employees might work, and held “liberty of contract” to be a Fourteenth Amendment right — has been justly criticized because the justices “deduced” an erroneous understanding of the word “liberty” as used in the due-process clause of the Fourteenth Amendment. Liberty in the due-process clause had a defined meaning for the amendment’s framers. It was passed down from Locke, Blackstone, and the founders, and was correctly cited by Justice John Harlan in Plessy v. Ferguson:

“Personal liberty,” it has been well said, “consists in the power of locomotion, of changing situation, or removing one’s person to whatsoever places one’s own inclination may direct without imprisonment or restraint unless by due course of law.”

As to the matter of “natural rights,” it is disheartening to read a favorable review in your magazine of a book that promotes that concept as an acceptable consideration for the Supreme Court. I would think that conservatives would be more likely to align themselves with an observation by Justice John McLean: “It is for the people . . . in making constitutions and in the enactment of laws, to consider the laws of nature. . . . This is a field which judges cannot explore. . . . They look to the law and to the law only.”

James W. Cotter

Via e-mail

Joseph Tartakovsky replies: I thank Mr. Cotter for his letter, but I would observe, first, that Justice Harlan, cited by Mr. Cotter for his “correct” understanding of the word “liberty,” wrote a dissent in Lochner in which he agreed that “liberty of contract” existed — he just felt it hadn’t been violated in this particular case. Second, the sentence quoted from Harlan’s Plessy opinion is really a quote from William Blackstone, who, in his next sentence, told us that “personal liberty” was a “right strictly natural.” Natural law, contrary to Mr. Cotter’s suggestion, does not merely shift control from the legislature to the courts — that’s a positivism of a different kind. Rather, it requires that judges enforce the will of the people, as expressed in the Constitution, always. But when difficult questions arise — what, concretely, does that immortal document say about police searches through walls using heat-imaging technology? — natural law is a wise and often unavoidable way to discern their intent.

NR Staff — Members of the National Review editorial and operational teams are included under the umbrella “NR Staff.”

In This Issue

Articles

Politics & Policy

Making Believe

With trumpets and drum rolls, the White House has released a new policy paper on methods to prevent terrorism, a study said to have been two years in the making. ...
Politics & Policy

London Aflame

London – Yesterday, August 8, I was watching live looting footage — some of it from districts near mine or where friends were hunkered down behind locked doors — with ...

Features

Politics & Policy

Gagging Us Softly

To be honest, I didn’t really think much about “freedom of speech” until I found myself the subject of three “hate speech” complaints in Canada in 2007. I mean I ...
Politics & Policy

Not a Race Card

A  number of states have recently passed voter-ID legislation — among them, Texas, Alabama, Kansas, South Carolina, Tennessee, Wisconsin, and Rhode Island. Two others, Georgia and Indiana, implemented such laws ...

Books, Arts & Manners

Politics & Policy

Something to Fear

  Decades ago, the historian Theodore Draper wrote about what he called the “minor academic industry” dedicated to resurrecting the reputation of the American Communist party. The industry’s ranks were composed ...
Politics & Policy

Roads Not Taken

Late summer, like midwinter, is a time of year when it’s best to shun the big studio releases. Any star-studded blockbuster or crowd-pleasing comedy that’s actually worth its budget (i.e., ...

Sections

Politics & Policy

Letters

Lochner in Rehab Reading Joseph Tartakovsky’s review of David Bernstein’s Rehabilitating Lochner (“Rights Revisited,” July 4), I got the sense that both gentlemen embrace the proposition that the 1905 Lochner decision was ...
Politics & Policy

The Week

‐ Who would have guessed that Moammar Qaddafi would outlive America’s AAA rating? ‐ Wisconsin Democrats have gone to extraordinary lengths ever since Republicans introduced legislation to scale back the collective-bargaining ...
The Bent Pin

The Virgin Mother

A new version of an old song is running through my head. “‘M’ is for the million threats against you. ‘O’ is for Orlando’s mounted cops. ‘T’ is for tattoos ...
Athwart

The Empire Goes Hungry

We could spend our time together here detailing the ideas that separate the Right and the Left, but if Maureen Dowd has taught us anything, it’s that it’s more fun ...
Politics & Policy

Poetry

  SOUTHERN STORM To the east is subtropical fern Whose shadows imprint the trails to the springs, More ancient than the forests themselves. To the west of these too-deep predawn pools There are rolling fields and ...
Happy Warrior

Old Blighted

I had a new book out the other day. Usual doom and gloom, as the more alert reader may just about be able to discern from the subtle title: After America: ...

Most Popular

U.S.

Fire the FBI Chief

American government is supposed to look and sound like George Washington. What it actually looks and sounds like is Henry Hill from Goodfellas: bad suit, hand out, intoning the eternal mantra: “F*** you, pay me.” American government mostly works by interposition, standing between us, the free people at ... Read More
Film & TV

Black Panther’s Circle of Hype

The Marvel Cinematic Universe (MCU) first infantilizes its audience, then banalizes it, and, finally, controls it through marketing. This commercial strategy, geared toward adolescents of all ages, resembles the Democratic party’s political manipulation of black Americans, targeting that audience through its ... Read More