Title: Message
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Folks:
Please take this interesting but off-topic discussion
off-list.
Eugene
On the one hand you
say that [some] economic liberties are expressly contained in the written
Constitution. On the other you abhor substantive due process. But
didn’t Lochner defend the economic (contract) liberties of a poor laborer (or
should we say employe (with an accent aigu), to use Peckham’s ridiculous term)
on substantive due process grounds? Was Peckham’s opinion wrong?
Did he read the Constitution wrong with respect to “freedom” of
contract? Or, as I suspect, didn’t he correctly understand that in order
to strike down the statute in Lochner he needed to utilize a doctrine that
functions like substantive due process does having no constitutional text on
which he could rely (other than the Due Process clauses)? And if Peckham
was right, then just maybe the Constitution does not EXPRESSLY protect or
guarantee quite as many economic “liberties” as you suppose, and if you want
to protect a whole range of such “liberties” then you need substantive due
process or something very much like it.
-----Original
Message-----
From: Rick
Duncan [mailto:[EMAIL PROTECTED]
Sent: Tuesday, July 26,
2005 10:38
AM
To: Law & Religion issues for Law
Academics
Subject: Re: what
does the right REALLY think of Roberts?
Bobby Lipkin says that I can't be what I
say I am, because a "libertarian/social conservative" is an oxymoron (kind of
like Subtantive Due Process, maybe?).
Almost no one is a 100% libertarian. Lots
of liberals who consider themselves libertarian support all sorts of laws
restricting economic liberty such as minimum wage laws, antidiscrimination
laws, high taxes, school taxes that restrict educational choice
by funding a government educational
monopoly, etc.
I strongly support the liberties
(including the economic liberties) expressly contained in the written
Constitution. I go to the wall for speech, free exercise, the protection of
property from uncompensated takings (including regulatory takings), etc. I
don't find any constitutional protection for sodomy and abortion. Substantive
Due Process is just a nice name for judicial
tyranny.
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