posted
I had thought of saying in an earlier exchange regarding Justice Scalia that he's not even the one that most modern liberals should be afraid of. Now I wish I had said it and looked like a more accurate prognosticator than an election day exit poll.
-------------------- "Warfare is the greatest affair of state, the basis of life and death, the Tao to survivial or extinction. It must be thoroughly pondered and analyzed."
"...attaining one hundred victories in one hundred battles is not the pinnacle of excellence. Subjugating the enemy's army without fighting is the true pinnacle of excellence."
-Sun Tzu, The Art of War, 6th century B.C.E.
Registered: May 1999
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posted
By making "May it be!" the title of the thread are you indicating that you are in favor this move?
-------------------- Great is the guilt of an unnecessary war. ~ohn Adams
Once again the Bush Administration is worse than I had imagined, even though I thought I had already taken account of the fact that the Bush administration is invariably worse than I can imagine. ~Brad DeLong
You're just babbling incoherently. ~C. Montgomery Burns
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posted
I would have to say yes. Even beyond just who would be Chief Justice or ideological reasons, he has some very innovative ideas on the Priviledges and Immunities Clause in the 14th Amendment.
Plus, he agrees with most constitutional scholars that a reexamination of Lochner is in order. Now if Bush would nominted Janice Rogers Brown, he'd have two votes already to start a movement on that front.
-------------------- "Warfare is the greatest affair of state, the basis of life and death, the Tao to survivial or extinction. It must be thoroughly pondered and analyzed."
"...attaining one hundred victories in one hundred battles is not the pinnacle of excellence. Subjugating the enemy's army without fighting is the true pinnacle of excellence."
-Sun Tzu, The Art of War, 6th century B.C.E.
Registered: May 1999
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posted
Oh, and I hope that such an elevation never happens.
-------------------- Great is the guilt of an unnecessary war. ~ohn Adams
Once again the Bush Administration is worse than I had imagined, even though I thought I had already taken account of the fact that the Bush administration is invariably worse than I can imagine. ~Brad DeLong
You're just babbling incoherently. ~C. Montgomery Burns
Registered: Mar 1999
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posted
Janice Rogers Brown...is she from California?
Or rather, Caleeefornia.
-------------------- Great is the guilt of an unnecessary war. ~ohn Adams
Once again the Bush Administration is worse than I had imagined, even though I thought I had already taken account of the fact that the Bush administration is invariably worse than I can imagine. ~Brad DeLong
You're just babbling incoherently. ~C. Montgomery Burns
Registered: Mar 1999
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posted
Yes, she was (is?) on the Supreme Court there. I know Bush nominated her for the Court of Appeals for the Ninth Circuit, but I can't remember if he recess appointed her.
-------------------- "Warfare is the greatest affair of state, the basis of life and death, the Tao to survivial or extinction. It must be thoroughly pondered and analyzed."
"...attaining one hundred victories in one hundred battles is not the pinnacle of excellence. Subjugating the enemy's army without fighting is the true pinnacle of excellence."
-Sun Tzu, The Art of War, 6th century B.C.E.
Registered: May 1999
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posted
Now, I'm no lawyer, but from skimming the first few paragraphs I'd say Lochner vs New York basically says that if an employer want to contract people to work for more hours than might be considered healthy, then that's OK as the employer has to right to earn a living? And your proiblem with this is what, exactly?
posted
Wait, I got it exactly backwards. They'd like to see its ideas taken seriously again. Sorry for the confusion. Lots of constitutional law professors (keep in mind they're largely liberal) have problems with it and don't think the Court reexamining it would be such a bad thing.
-------------------- "Warfare is the greatest affair of state, the basis of life and death, the Tao to survivial or extinction. It must be thoroughly pondered and analyzed."
"...attaining one hundred victories in one hundred battles is not the pinnacle of excellence. Subjugating the enemy's army without fighting is the true pinnacle of excellence."
-Sun Tzu, The Art of War, 6th century B.C.E.
Registered: May 1999
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posted
Lee: let me quote from my Emmanuel's Constitutional Law what I think they might like to see more of in modern juriprudence
quote: Close fit: First, [the majority opinion] required a very close "fit" between the staute and its objectives. In the majority's words, there had to be a "real and substantial" relationship between the statute and the goals which it was to serve. This tight fit was absent in Lochner because bakers could have been protected by less restrictive measures, e.g., more frequent inspections, required bathrooms, etc.
Limited objectives: Second, only certain legislative objectives were acceptable. Regulation of health and safety was permissible, but readjustment of economic power or economic resources was not. Thus, to the extent that the NY law in Lochner was merely a "labor law" which readjusted bargaining power, rather than a true health regulation, it served an impermissible objective.
No serious scholar today doubts that safety regulations like that in Lochner were good, it's more a question of whether such regulation was closet econo-industrial tinkering. I think that's what they don't like. It goes along with their opinion of the Commerce Clause jurisprudence from the 1930s to the 1990s.
-------------------- "Warfare is the greatest affair of state, the basis of life and death, the Tao to survivial or extinction. It must be thoroughly pondered and analyzed."
"...attaining one hundred victories in one hundred battles is not the pinnacle of excellence. Subjugating the enemy's army without fighting is the true pinnacle of excellence."
-Sun Tzu, The Art of War, 6th century B.C.E.
Registered: May 1999
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quote:There is no reasonable ground, on the score of health, for interfering with the liberty of the person or the right of free contract, by determining the hours of labor, in the occupation of a baker. Nor can a law limiting such hours be justified a a health law to safeguard the public health, or the health of the individuals following that occupation.
Section 110 of the labor law of the State of New York, providing that no employes shall be required or permitted to work in bakeries more than sixty hours in a week, or ten hours a day, is not a legitimate exercise of the police power of the State, but an unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract in relation to labor, and, as such, it is in conflict with, and void under, the Federal Constitution.
So. . . The NY labour law said that if people didn't work too long, then they wouldn't get tired and have accidents. Lochner - and the Supreme Court - felt that there were better ways (of ensuring people didn't have accidents) than requiring them to go to bed early? 8)
posted
Without reading the case again, what they're getting at in that quote is that they did not believe the legislature when they said they were regulating those hours for health reasons. The "there is no reasonable ground, on the score of health" I think the experts read as meaning something like "...There is no way you can dress up what is a labor law as a health law and interfere with..."
But you are right about the Supreme Court not deferring to the fact-finding of the legislature. Emmanuels briefly notes that they didn't. Neither side is optimally situated to find facts though, so that doesn't really weigh in favor of either side.
-------------------- "Warfare is the greatest affair of state, the basis of life and death, the Tao to survivial or extinction. It must be thoroughly pondered and analyzed."
"...attaining one hundred victories in one hundred battles is not the pinnacle of excellence. Subjugating the enemy's army without fighting is the true pinnacle of excellence."
-Sun Tzu, The Art of War, 6th century B.C.E.
Registered: May 1999
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posted
But in this case I'd say there's very little difference between the two. Working 60+ hours a week isn't necessarily healthy; and if the employer requires the worker to do so. . . Shouldn't there be some protection for the employee?
Mr. Bush should elevate Justice Thomas to Chief Justice and appoint Justice Brown to the Court as an Associate Justice.
Your conservative colors are showing.
-------------------- Great is the guilt of an unnecessary war. ~ohn Adams
Once again the Bush Administration is worse than I had imagined, even though I thought I had already taken account of the fact that the Bush administration is invariably worse than I can imagine. ~Brad DeLong
You're just babbling incoherently. ~C. Montgomery Burns
Registered: Mar 1999
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