In the Winter 2012 Independent Review, I review David Bernstein’s Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform. Here’s how it starts:
Few Supreme Court cases receive more scorn in U.S. law schools than Lochner v. New York (198 U.S. 45), the 1905 decision that struck down a New York law limiting the number of hours that bakers could work as a violation of the Fourteenth Amendment’s Due Process Clause. It’s safe to say that most legal academics and judges today believe that the Lochner Court engaged in extraordinarily outrageous “judicial activism” motivated by a devotion to extreme libertarian ideology, big business, or both.
In Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform, George Mason University law professor David Bernstein makes the case that the conventional view is wrong. He provides persuasive evidence that Lochner does not deserve to be singled out as an especially activist or offensive case and that Lochner‘s Progressive critics were the real activists with a much more disturbing agenda.
Read the rest.
What happens to a justice system when it grants legal immunity to those in power for their malicious acts toward the innocent and vulnerable? A 6-year-old boy is charged with first-degree sexual assault for playing doctor with friends; the Class B felony can be punished by up to 60 years imprisonment.
PLAYING DOCTOR BECOMES A FELONY
Last fall, a six-year-old Wisconsin boy played doctor with another boy and girl, both of whom were 5. Depending on whose story is credited, some touching of the girl’s bare buttocks occurred and/or a finger was inserted into the girl’s anus. (The girl denied the penetration to police.)
On November 15, 2011, the parents of the boy filed a federal lawsuit against Wisconsin’s Grant County district attorney, a social worker and a now-retired Sheriff’s Office investigator. The reason? The boy, who is now merely known as “D”, was charged with first-degree sexual assault. He has been so vigorously pursued by Grant County officials that D’s attorney Christopher Cooper states, “I think his life has been ruined, and I think it’s been ruined by reckless conduct by the defendants without any regard for the little boy and his future.”
At 7 years old, D cannot currently be prosecuted or even named in court records. But the parents accuse county officials of using threats to force them to sign a Consent decree (a blanket permission to deal with their son). They claim officials harangued them and D to admit his guilt and to have him receive social and protective services. If a confession was not produced, then the parents were told that D could be listed as a sex offender when he turned 18. That would label him a second-class citizen, both legally and in life’s important opportunities such as career, education, and residency.
If accurate, the parents’ lawsuit reveals a tale of arrogant power, political favors, malice, and utter disregard for a child’s welfare. [Keep reading…]
Several years ago, I wrote a review of The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom by Cato Institute chairman Robert A. Levy and Institute for Justice co-founder William Mellor. As its subtitle suggests, the book criticizes twelve U.S. Supreme Court decisions that are especially offensive from a libertarian perspective, such as Wickard v. Filburn, Korematsu v. U.S., and Kelo v. City of New London.
Because I’m a libertarian myself, I agreed with most of their criticisms of the twelve decisions.
I had reservations, though, about their proposed remedy: “judicial engagement” on liberty’s behalf — that is, getting judges on board with (for example) the idea that Congress’s powers under the Commerce Clause are much narrower than the Supreme Court has said they are since the New Deal era. This struck me as naive. Judges, after all, are part of the federal government, and the President and Congress both try to ensure that the people they put on the bench believe in maximum executive and legislative power. Judges haven’t increased government power because libertarian lawyers didn’t put the right arguments in front of them; they’ve increased government power because that’s what they were put on the bench to do.
In a response to my review, Levy and Mellor claimed that I was “far too cynical” — which only cemented my view that, for self-described libertarians, these two gentlemen weren’t nearly cynical enough about the federal courts. In fact, they seemed to have a faith in “good government” that is antithetical to libertarianism.
Lately, however, I’ve come to think that, whatever Levy and Mellor’s personal attitudes may be (it’s possible that I misread them), favoring “judicial engagement” for liberty does not require one to be naive about government and therefore is not contrary to the spirit of libertarianism.
According to Deutsche-Welle, Muslim communities in Germany are often seeking private arbitration in criminal cases, in opposition to the state “justice” system. This apparently alarms some people. It is a common cry among the politically active conservative set that the liberal embrace of multiculturalism is leading to a fragmented Europe. Consider this note from the article, however:
“When a serious crime is committed, German police step in to investigate what’s happened,” he said. “But parallel to that, special Muslim arbitrators, or so called peace judges, are commissioned by the families concerned to mediate and reach an out-of-court settlement. We’re talking about a tradition that’s more than a thousand years old in Muslim societies.”
I wonder how long it will take for someone to claim that the practice of a 1000+ year old tradition is the result of modern liberalism’s undermining of European values? I’m sure they’ll work out a way to prove that in centuries past, Muslims (and other religious groups) in Europe deferred to secular, socialist democracy.
This is a syndicated post, which originally appeared at Mimi and Eunice » IP. View original post.