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<< Political Compass | Main | Medicare "Competition" Would Kill System >> November 03, 2003More Bad Legal HistoryNow Eugene Volokh has jumped into the Lochner fray citing this post by Eric Muller. According to both of them it's "obvious" that the founders of the Constitution would have assumed that the "the right of a person to grow a vegetable on his farm and sell it to his neighbor" without government interference was fundamental, so of course Lochner was justified. Which is just bizarre, since economics at the time of the Revolution was a hive of monopolies and all sorts of anti-competitive regulations. The most prominent legal theorist of the time, William Blackstone, thought it obvious that government could require people to grind their flour at a designated mill, since a mill was erected "on condition, that when erected, [all inhabitants] should all grind their corn there only." (3 Commentaries 235). Ferry owners could sue the constructers of bridges as unfair competition against their monopoly rights in this period. (Chadwick v. Property of Haverill Bridge, MA Supreme Judicial Court 1798). American towns regularly regulated the rates charged by mill owners and prohibited building roads in competition with toll roads. Now, subsequent doctrine in the 19th century might challenge such reflexive regulatory and monopolistic grants, but this casual (and false) historical assumption of laissez-faire economics as somehow being embedded in the Constitution at its founding is what makes conservative legal views so skewed. Liberals may read rights into the Constitution, but they at least don't claim some imaginary "original intent" for it, then distort history to justify themselves. As I've said, I generally am against both liberal and conservative judicial activism, but this conservative bastardization of history is appalling. Posted by Nathan at November 3, 2003 02:01 PM Related posts:
Trackback PingsTrackBack URL for this entry: CommentsAnd unfortunately, de rigeur for todays up and coming right. Posted by: JC at November 3, 2003 02:35 PM Hm. Muller's is the second comment I've read implying that because Bernstein has written MORE and more creatively about the Lochner era than anyone else, his opinions on the interpretation and relevance of those cases today are somehow entitled to greater deference. George Combe wrote extensively and creatively on the subject of phrenology in the 19th century. Although we may respect his dedication and enthusiasm, that does not make phrenology valid. Posted by: scylla at November 3, 2003 03:21 PM Yes, and back when Lani Guinier was nominated for the Justice Department, despite the fact she had written extensively and creatively about voting rights, somehow that didn't deserve deference :) Posted by: Nathan Newman at November 3, 2003 03:36 PM Deference? In a body which includes Orrin Hatch? Come now. Posted by: Linkmeister at November 3, 2003 04:54 PM I thing your distorting what he wrote. He didn't say it was obvious that the founders would assume that anyting was fundamental, all he said was that property or economic rights could sooner be extrapolated from the text of the constitution than rights that many today would argue are fundamental. Posted by: John Strom at November 3, 2003 10:30 PM John- Given that they had laws DIRECTLY violating the supposed right of commerce at the time of the founding, the point is that such a right could never be extrapolated from that period, unless you were ignorant of history at the time. Which was my point. Posted by: Nathan at November 3, 2003 11:03 PM Post a comment
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