Friday, May 26, 2006

Column on Holmes' Lochner Dissent

A Source of Liberty?s Curtailment

In his influential but insidious dissent in the Lochner decision
(LOCHNER v. PEOPLE OF STATE OF NEW YORK, 198 US 45 [1905]), Justice Oliver
Wendell Holmes, Jr. said:

...the word liberty in the Fourteenth Amendment is perverted when it is
held to prevent the natural outcome of a dominant opinion, unless it can
be said that a rational and fair man necessarily would admit that the
statute proposed would infringe fundamental principles as they have been
understood by the traditions of our people and our law....

So, Holmes held, if the majority??dominant opinion??wants it, it may be
done, period. Only if a measure formally contradicts the Constitution is
it prohibited. By this Holmes meant that if what the legislature intends
doesn?t directly, formally contradict the constitution, it should get a
pass from the courts.

A direct contradiction is rare?only if Congress tried to regulate
religion or censor speech would we have such a thing, since the First
Amendment states explicitly that no such thing may be done. Many of our
individual rights, however, are only implicit in the U. S. Constitution.
That accounts for all the fuss about no mention of a ?right to privacy,?
leading the followers of Holmes to argue that this makes is quite OK for
governments to meddle in our private lives if ?dominant opinion? (i.e.,
the legislators) approves.

We are all aware of the famous case of the lynch mob taking democracy too
far. That?s because lynch mobs, albeit expressing ?dominant opinion,?
violate due process. That means they abrogate principles of (procedural)
justice, they smash civil liberties.

But by Justice Holmes? influential opinion, what lynch mobs do is just
fine. If ?dominant opinion? is behind it, why not violate due process and
individual rights (unless they are explicitly mentioned)? Just think of
it?by this judicial philosophy everyone is completely subject to the will
of the majority other than when speaking and worshiping.

Now what kind of freedom is this that can be squelched so easily, by the
majority (which means those who claim to represent it by way of having
been elected by some small fraction of the majority, actually, namely,
some of the voters)? Hitler was so elected, too, so one may suppose that
if he had not stopped people from talking and worshipping, everything else
he perpetrated would have fit with Justice Holmes? influential judicial
philosophy, one that, sadly, too many legal theorists and, indeed,
justices accept.

Sadly it takes generations for radical, albeit excellent, ideas to take
hold. Americans, no less than others across the globe, have the
governmental habit pretty badly that Holmes' remark rationalizes. It is,
indeed, not oil we are "addicted to," as President George W. Bush would
have it, but government. Whenever there?s a problem, too many of us run to
politicians and bureaucrats to fix it.

But that way lies tyranny. Of course, when that tyranny comes into clear
sight, many draw back and try to remedy matters. Still, most of the time
they are oblivious to the fact that the role of government?of a legal
order?is to protect, not to violate, our basic individual rights and when
a law is enacted that does violate such rights, it must not be accepted
but struck down immediately.

The U.S.A. is supposed to be a country of free men and women, not of
serfs ?bound to the land? by taxation and bureaucratic regulation. We are
supposed to solve our social and private problems without resorting to
coercive measures. (Even funding government must ultimately come from some
voluntary measure, not taxation, a form of extortion the Mafia could be
proud of.)

But it takes generations for people to acknowledge some of the most basic
truths, especially when there are so many who love living by lies such as
those told by the likes of Justice Oliver Wendell Holmes, Jr. in his
egregious Lochner dissent.

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