期刊名称：Reason Papers : A Journal of Interdisciplinary Normative Studies
印刷版ISSN：0363-1893
出版年度：2012
卷号：34
期号：2
页码：196-204
出版社：Reason Papers
摘要：In constitutional law, the intellectual ferment is on the so-called right. Conservative and libertarian legal scholars are taking new looks at doctrines and cases on which they thought orthodoxies were settled, and discovering long-neglected angles. Those whose initial passion for identifying the pathologies in modern constitutional law was fueled by Roe v. Wade (1973) focused, quite naturally, on the U.S. Supreme Court’s and the academy’s eagerness to weaken democratic majorities, and to make decisions not authorized by any clear text or identifiable tradition. Thus, for those conservatives, the expression “judicial restraint” took on an untouchably positive sheen, and Justice Oliver Wendell Holmes’s paean in his Lochner v. New York (1905) dissent to “the right of the people to embody their opinions in law” sounded rather fine. It is no surprise that author Timothy Sandefur, a litigator with the Pacific Legal Foundation, is part of the growing movement to rehabilitate Lochner. We all have our moments. Mine came in a constitutional history seminar at Regent Law School (where I teach) when my students had both Lochner and a modern substantive due process case (Roe or Planned Parenthood v. Casey [1992], I forget which) side by side: one of them pointed to Lochner and remarked, “At least this is law!”
