THINGS I LIKE, PART IV

Finding the quote that you were pretty sure existed but hadn't seen yet in its precise form. From Janice Brown's April 20th, 2000 speech before the Federalist Society at U Chicago:

The oracles point in all directions at once. Political polls suggest voters no longer desire tax cuts. But, taxpayers who pay the largest proportion of taxes are now a minority of all voters. On the other hand, until last term the Supreme Court held out the promising possibility of a revival of what might be called Lochnerism-lite in a trio of cases — Nollan, Dolan, and Lucas, Those cases offered a principled but pragmatic means-end standard of scrutiny under the takings clause.

You can find the speech here, and I came across it through Eric Muller, who thinks that the speech is a bit loopy.
The "she likes Lochner," "Lochner ain't so bad," "yes it is," "and the horse you rode in on" discussion is a bit of a red herring if the discussion never ends up touching the Lochner analogue du jour, takings. I offered ergonomics as another analogue (partly because I've been reading Molly Ivins). The fact that ergonomics has been the subject of political, rather than legal, contestation helps to highlight the argument that whatever you think about the very interesting issues regarding Lochner and its legacy (questions that Bernstein has done a lot to illuminate, along with others like Howard Gillman at USC), the political fight is only indirectly implicated in such a discussion, as so often happens when court commentary and life are thrown together. Trying to think about politics through law is often like trying to nail spaghetti to a wall: it works if you're subtle in your approach, but otherwise you just get a squishy mess, and why were you trying to nail spaghetti to a wall in the first place? Perhaps you weren't. Perhaps you were making art. Or trying to see if your dinner was cooked. Or something else. Oh, and by the way, here are all these other cool things to think about, like the history of spaghetti, the actual physics of sticking spaghetti to the wall, whether rice spaghetti is really good for you. . .

All right, so this is goofy, but I hope you get my point. There's something basically distracting about looking at politics through the medium of constitutional law. Things get lost, other things pop up, the questions are defined strangely, and so on.

Brown likes Lochnerism-lite. Good enough, Mr. Baude?

As I noted below, the problem for Democrats here is that Lochnerism-lite is pretty much in the mainstream. I think that it's unwise, and I certainly think that there is no reason to get backed into this position because you like other things that the Supreme Court has done (especially, protecting other civil liberties). The suggestion that you need to like the protection of property rights if you like the protection of other rights is, in fact, a strange suggestion. You might come to the conclusion that property rights should be protected. Fine. But you might also come to the conclusion that there are meaningful differences between protecting property rights in the manner of the Dolan Court and protecting speech, religious liberty, the freedom not to be treated differently by government because of your race, and so on. It's true that if you come at the issue as a matter of constitutional interpretation (exclusively), then you'll be faced with a different set of culturally bound approaches as to how to make the distinction. It's also true that in the world of politics, there is a self-evidentness to the distinction: property rights occur in a different context and implicate different kinds of goods that should be treated differently by virtue of their being different. Not so hard, really.