Lochner, .......

Glenn Reynolds has been alerting to the new book by David Bernstein concerning an early 20th century Supreme Court case known as Lochner vs New York. Today at Instapundit he calls our attention to this response Bernstein makes to has critics.

David Bernstein • September 17, 2011 10:38 pm

When we last encountered the Media Matters blog, its authors reacted to a George Will column on Rehabiltating Lochner by declaring that Lochner v. New York is “in no way a liberal bogeyman.”

Today, reacting to a blog post of mine suggesting that the idea that federal power does not constitutionally extend to broad child labor laws is not all that shocking given that the states could and did regulate child labor before the feds stepped in, the MM blogger chimes in: “Is George Will on board with dismantling federal child labor laws, or did he not know what he was getting into when he endorsed Lochner?”

Three salient points: (1) my blog post did not mention or allude to Lochner in any way; (2) Lochner does not, in fact, have anything to do with the constitutionality of federal labor laws given that Lochner was a due process case about liberty of contract and the scope of the states’ police power while the historical constitutional debate over child labor laws revolved around Congress’s entirely distinct Commerce Clause power; and (3) if the Media Matters blogger (Adam Shah) had bothered to read my book, which I’m sure he has not, he would know that I point out that liberal legal commentators have spent the last several decades misusing Lochner to attack purportedly “conservative” constitutional doctrines that have nothing to do with the issues involved in Lochner. The Commerce Clause, Takings Clause, Contracts Clause, non-delegation doctrine, commercial speech and more get lumped into the “Lochner” framework because that’s a lot easier than explaining why, e.g., the power to regulate commerce among the states includes the power to regulate home-grown marijuana that never enters the stream of commerce.

So, I’d like to thank Media Matters for illustrating my point. You might even say that Media Matters has shown that Lochner remains a liberal bogeyman, at least among the less constitutionally and historically sophisticated.