Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Sunday, January 25, 2015

Nourse, "blatherskite", and "the great irony of Lochner"

As part of my imperfect but ongoing attempts to resolve lingering questions about the legal meaning of the Fourteenth Amendment, I found myself today reading an intellectually exciting and insightful article by Victoria Nourse,  A Tale of Two Lochners: The Untold History of Substantive Due Process and the Idea of Fundamental Rights, 97 Cal. L. Rev. 751 (2009). I learned much from reading it, on matters both small and great.

On the smaller side of things, I learned a new word, "blatherskite."  (The word's meaning reminds me of Marc's immediately preceding post, in which Dickens has a character observe about another that "the meaning or necessity of our words is a secondary consideration, if there be but a great parade of them.")

More to the point of my purpose for perusing, I came to appreciate how repitition of today's conventional academic wisdom about Lochner may unknowingly reflect the triumph of a claim advanced by Theodore Roosevelt in an underappreciated instance of popular constitutionalism. According to Nourse, "the great irony of Lochner is that an essentially political critique, [Theodore] Roosevelt’s strong-rights view, has become the 'doctrinal' understanding of the case."

Is Professor Nourse right? Read the whole thing.


Walsh, Kevin | Permalink