LOCHNER

I promised myself that I would stop blogging on the weekends (and do some real work for a change), but I added some thoughts to my post on Bernstein, Lochner, and Brown, below. One thing that is important to think about with respect to Brown's nomination, it seems to me, is that she attacks Lochner on the grounds that it represented judicial overreaching. Fair enough. The problem, it seems, is that these views are intertwined with an account of current areas in which the Court is either overreaching or being hypocritical, namely, in preferring to protect civil liberties such as speech over economic liberties. The tactic of jurisprudential reformers of various stripes is clear: end the illegitimate distinction, one way or the other. To me it seems entirely unwise to argue that economic liberties deserve the same protection as religious liberties; the last thing we want is more liberation of corporate power, and the last kind of judges we should want are those who think that this liberation is a matter of constitutional principle. But, hey, I'm just a welfare-state liberal anyway, trying to eke out a living as a college professor, so what do I know?

MORE: Oh, and I'm not even a lawyer.