October 18, 2011
“Either the Commerce Clause gives Congress a plenary power to regulate anything it pleases or it doesn’t; and let’s have that argument,” says George Mason University law professor David Bernstein.
Bernstein goes after progressive attempts to limit economic freedom and liberty of contract in his new book Rehabilitating Lochner: Defending Individual Rights against Progressive Reform, a history of the 1905 case Lochner v. New York. The decision nullified a state law regulating work hours for bakers and became the impetus for a 40-year period where American courts protected economic liberty.
A Lochner rehabilitation has not been easy, Bernstein admits. Many legal experts see Lochner as on par with the infamous Dred Scott decision. The government's encroaching power under the Commerce Clause has also held the case for economic liberty back. But Bernstein remains hopeful and believes both liberals and conservatives have something to gain in reexamining Lochner's implications, which range from protecting the right to an abortion to striking down the health care act’s individual mandate.