Quotation of the Day: The Fifth Amendment and the Federalist Society

Eminent Domain Gate And Wall

Here’s a bit of history about the “Lochner Court,” a seminal chapter in the modern (if not contemporary) economic freedom movement from The Federalist Society: How Conservatives Took the Law Back from Liberals, a new book by Suffolk University Law professor Michael Avery and Boston attorney Danielle McLaughlin (a Suffolk Law alumna), published by Vanderbilt University Press here in Nashville just last year, a copy of which my wife picked up for me at the Southern Festival of Books over this past weekend. The selection comes from a chapter on government’s regulation of private property, specifically the “takings clause” of the Fifth Amendment to the United States Constitution. The authors refer frequently in the chapter to Smartest Man Alive™ Richard Epstein‘s “radical” theory that “any regulation of private property constitutes a taking” worthy of just compensation under the amendment, which he had espoused in his 1985 book Takings: Private Property and the Power of Eminent Domain:

The modern property rights movement’s focus on the takings clause results from the 1937 rejection by the Supreme Court of a substantive due process rationale for upholding economic rights against the power of the government to regulate. The substantive due process basis for economic rights, heavily influenced by laissez-faire economic theory, had dominated the court’s jurisprudence from the late nineteenth century to Franklin Roosevelt’s second term. The leading case was Lochner v. New York, where the Supreme Court invalidated a New York labor law that limited the number of hours a week a baker could work. The court ruled that the New York law was an unreasonable and arbitrary interference with a person’s right to enter into contracts, and not a valid exercise of the state’s police power under which it could constitutionally legislate to protect the health, welfare, and safety of its citizens. The court identified the right to purchase or sell labor in the Fourteenth Amendment’s guarantee of the right to life, liberty, and property. The court gave little or no deference to the New York legislature’s position that the labor law bore a direct relation to the welfare of the bakers. As between the state’s power to legislate and the bakers’ freedom of contract, the court upheld the rights of the bakers.

In the decades following Lochner, the Supreme Court maintained a healthy aversion to regulation. In that period, it struck down nearly two hundred regulations on economic due process grounds. (Avery & McLaughlin, 54-55)

Sadly, as my students are learning this fall, and as Avery & McLaughlin detail in the following paragraphs and pages, the advent of the Great Depression and a second World War gave a second head of steam to Congress and the presidency at the height of the Progressive Era. Roosevelt would later attempt to pack the court so full of political allies as to empower him to erode all sorts of individual liberties the Bill of Rights ostensibly protects.

When I worked for the Cato Institute in my second year of graduate school, I remember the organization publishing and releasing a book by George Mason University Law professor David Bernstein, Rehabilitating Lochner: Defending Individual Rights against Progressive Reform. I didn’t know much about the book’s substance at the time, except that everyone at work seemed to be really excited about the release — but I may now go back and pick up a copy once I’m done with Avery & McLaughlin.

As a personal aside, getting excited about stuff like this only adds volume to the steady drumbeat between my ears that keeps telling me I should have pulled the proverbial trigger and gone to law school upon completing my undergraduate work, that I’m wasting my time right now noodling around with a communications practice that has nothing to do with why I went to school in the first place. I’ve been on the fence for months now as to whether or not to take the LSAT and the so-called plunge that comes afterward, especially now that I’m up to my ears in student loan debt after living almost half a decade in a densely populated metropolitan region with exorbitant costs of living.

But it’s becoming increasingly and unavoidably clear that I’m not going to feel fulfilled in this life until I at least try to explore what’s possible on that path.