Quote:
Originally posted by Captain
I do not know the history of JRB or the context in which she said these things, but I have a certain respect for a conservative who is willing to stand up for Lochner.
After all, the constitution specifically says that "No state... shall pass any ... law impairing the Obligation of Contract", and that seems to be an individual right that is specifically protected. That must mean something.
While in my personal view the balancing of rights would favor protective legislation in cases like Lochner, I do think some weight should be given to the counterbalancing right, and it is just a question of how much.
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I don't think the Contracts clause gets you much of anywhere for substantive due process. That's focused on ex post changes to teh terms of contracts, not ex ante limitations upon them.
Now, the privileges and immunities clause both in Art. IV and the 14th amendment should get your somewhere, but, since slaughterhouse and Parrish, don't.
