"You cannot qualify war in harsher terms than I will. War is cruelty, and you cannot refine it; and those who brought war into our country deserve all the curses and maledictions a people can pour out." - William Tecumseh Sherman

Name: The General
Location: Sacramento, California, United States

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Tuesday, April 19, 2005
  Momma If That's Moving Up, Then I'm Moving Out
My apologies to Billy Joel, those lyrics from the song just popped into my head as I sat down to write this post.

My blog is moving! I've acquired a new blog, powered by the capable and very elegant Wordpress publishing software! You can find my new blog at http://benjoblog.weblogs.us or simply click here.
 
 POSTED BY THE GENERAL AT 2:42 AM
Monday, April 18, 2005
  Lochner v. New York
Sunday (4/17/2005) was the 90th anniversary of the Supreme Court's decision in Lochner v. New York. The case involved a baker who had broken New York's state law forbidding bakers from working more than 60 hours in a given work week. The Supreme Court struck down the law, on the grounds that it violated the baker's right to liberty and to freely make contracts. Although there are deficiencies in the decision overall, it was a watershed in natural rights jurisprudence. Here are two of the best portions of the decision:
The general right to make a contract in relation to his business is part of the liberty protected by the Fourteenth Amendment, and this includes the right to purchase and sell labor, except as controlled by the State in the legitimate exercise of its police power.

Liberty of contract relating to labor includes both parties to it; the one has as much right to purchase as the other to sell labor.
This last quotation from the decision is an excellent defense of judicial review:
It must, of course, be conceded that there is a limit to the valied exercise of the police power by the state. There is no dispute concerning this general proposition. Otherwise the 14th Amendment would have no efficacy and the legislatures of the states would have unbounded power, and it would be enough to say that any piece of legislation was enacted to conserve the morals, the health, or the safety of the people; such legislation would be valid, no matter how absolutely without foundation the claim might be. The claim of the police power would be a mere pretext,- become another and delusive name for the supreme sovereignty of the state to be exercised free from constitutional restraint. This is not contended for. In every case that comes before this court, therefore, where legislation of this character is concerned, and where the protection of the Federal Constitution is sought, the question necessarily arises: Is this a fair, reasonable, and appropriate exercise of the police power of the state, or is it an unreasonable, unnecessary, and arbitrary interference with the right of the individual to his personal liberty, or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family? Of course the liberty of contract relating to labor includes both parties to it. The one has as much right to purchase as the other to sell labor.

This is not a question of substituting the judgment of the [198 U.S. 45, 57] court for that of the legislature. If the act be within the power of the state it is valid, although the judgment of the court might be totally opposed to the enactment of such a law. But the question would still remain: Is it within the police power of the state? and that question must be answered by the court.
Law Prof. David Bernstein gives a good summary of how the left and right view the decision:
In Lochner v. New York (1905), the Supreme Court - discovering a right to contract in the Fourteenth Amendment - invalidated a New York statute setting maximum working hours for bakery employees. A century later, Lochner still stands as one of the most widely despised decisions in the Court's entire history. Conservatives denounce it as a prime example of "substantive due process" run wild - judicial invention paving the way for Roe v. Wade and its offspring. With equal fervor, liberals criticize the Lochner Court's perceived attempt to write laissez faire economics into the Constitution.


Timothy Sandefur provides a good defense of Lochner - Why Lochner was rightly decided.
 
 POSTED BY THE GENERAL AT 9:34 AM
Sunday, April 17, 2005
  Cox and Forkum - Civil Obedience
 
 POSTED BY THE GENERAL AT 7:25 PM
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