| "...whereas laws that confer a benefit onto one sector of society--for example, workers--at the expense of another--for example, owners--was partisan and impermissible as a violation of due process.In essence, an individual freedom of contract could be violated only for "neutral" reasons--for purposes that affected the public-at-large."
Could this public policy exception be invoked to silence your criticism involving Hobbes?
Moreover, while your piece focuses on the implications of the decision itself, the Lochner Legacy is directed at the Lochner era Court, so perhaps your paper would be more robust and honest if you likewise widen the parameter of your analysis. For instance, did it not seem odd to you that Sunstein only quotes from two cases (Adkins and West Coast Hotel)? In my opinion, these cases do not give anything close to an accurate picture of what was going on. After all, the evidence seems to support the notion that the Lochner era Court was not as averse towards redistribution as the revisionists might have us believe. Redistribution via taxation was perfectly fine. As you mention, Sunstein makes the claim that "consideration of the plight of the disadvantaged" was considered "impermissible partisanship" during the Lochner era and yet antitrust laws were upheld even though they were designed to safeguard small businessman at the expense of monolithic corporations. Or what about the Court's backing of the so-called "poor laws," which arguably had more redistributive consequences than the minimum wage laws.
3. Lochner itself - Did the Court strike down the minimum wage law here because it believed it to be special interest legislation, as Sunstein would have us believe? Nowhere in Peckham's opinion does he even mention class legislation objections to the law (an oddity considering the fact that Joseph Lochner's brief relied heavily on it). Nowhere in the opinion does Peckham incorporate the "immutability of the common law" argument either. Could it be that the Court simply considered the law to have violated a protected liberty without valid police power justification? Peckham even contends that the law was a "mere meddlesome interference with the rights of the individual," which somewhat suggests that he was looking at "rights" from an unqualified, classless perspective. After all, the freedom of contract is omnibenifical.
Hopefully, these comments are helpful to you in some small way. If I think of more to add, I will. I enjoyed reading your paper (stylistically, you do not leave much room for reproach) and I should have a rewrite completed by the end of the week. |