what does the right REALLY think of Roberts?

[Volokh, Eugene]

Folks:  Please take this interesting but off-topic discussion off-list.
 
Eugene

	-----Original Message-----
	From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Newsom Michael
	Sent: Thursday, July 28, 2005 3:09 PM
	To: Law & Religion issues for Law Academics
	Subject: RE: what does the right REALLY think of Roberts?
	
	

	On the one hand you say that [some] economic liberties are
expressly contained in the written Constitution.  On the other you abhor
substantive due process.  But didn't Lochner defend the economic
(contract) liberties of a poor laborer (or should we say employe (with
an accent aigu), to use Peckham's ridiculous term) on substantive due
process grounds?  Was Peckham's opinion wrong?  Did he read the
Constitution wrong with respect to "freedom" of contract?  Or, as I
suspect, didn't he correctly understand that in order to strike down the
statute in Lochner he needed to utilize a doctrine that functions like
substantive due process does having no constitutional text on which he
could rely (other than the Due Process clauses)?  And if Peckham was
right, then just maybe the Constitution does not EXPRESSLY protect or
guarantee quite as many economic "liberties" as you suppose, and if you
want to protect a whole range of such "liberties" then you need
substantive due process or something very much like it.  

	 

	-----Original Message-----
	From: Rick Duncan [mailto:nebraskalawprof at yahoo.com] 
	Sent: Tuesday, July 26, 2005 10:38 AM
	To: Law & Religion issues for Law Academics
	Subject: Re: what does the right REALLY think of Roberts?

	 

	Bobby Lipkin says that I can't be what I say I am, because a
"libertarian/social conservative" is an oxymoron (kind of like
Subtantive Due Process, maybe?).

	 

	Almost no one is a 100% libertarian. Lots of liberals who
consider themselves libertarian support all sorts of laws restricting
economic liberty such as minimum wage laws, antidiscrimination laws,
high taxes, school taxes that restrict educational choice by funding a
government educational monopoly, etc.

	 

	I strongly support the liberties (including the economic
liberties) expressly contained in the written Constitution. I go to the
wall for speech, free exercise, the protection of property from
uncompensated takings (including regulatory takings), etc. I don't find
any constitutional protection for sodomy and abortion. Substantive Due
Process is just a nice name for judicial tyranny. 

	 

	Cheers, Rick Duncan
	 

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