Thursday, October 11, 2018

What will the five to four conservative Court majority do?


There’s a time bomb in the Declaration of Independence that concerns a Supreme Court which exhibits insufficient deference to political democracy. The Declaration states that our “unalienable rights” derive from “the laws of nature and of nature’s God”; that is, they are prior to any government.

On this ground the Court can, in theory, invalidate any law passed by our Congress, asserting that it violates a Higher Law. We assume that this involves the personal liberty rights enumerated in the Bill of Rights.

But note the following passage from Wikipedia, where property rights seem to exist on the same level as liberty:

“Scholars have noted that when the Fourteenth Amendment was adopted in 1868, 27 out of 37 state constitutions had Lockean Provisos which typically said: "All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring and possessing and protecting property: and pursuing and obtaining safety and happiness."”

In the Lochner era, from the early twentieth century until a few years into FDR’s New Deal, the Court repeatedly struck down such laws as the forty hour week and restriction of child labor as interfering with an employer’s right to do as he wished with his property.

Property rights were also assumed to support the right to refuse service to customers of a given race or ethnicity.

Rising public objection to the Court’s obstructionism toward humanitarian and safety provisions of New Deal legislation persuaded the Court to moderate its position. The question is whether the new five to four conservative majority may usher in a new Lochner era in which the people are unable to effectuate laws improving work, safety, economic, health, and voting conditions.

In the end, it will come down to what we are willing to put up with.

https://en.wikipedia.org/wiki/Lochner_era

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