“Her key example of this alleged judicial malfeasance is the case of Lochner v. New York (1905), in which the Supreme Court struck down a state economic regulation on the grounds that it violated the right to economic liberty that was secured by the Fourteenth Amendment. “Courts owe deference to legislative majorities in determining how to handle economic and social problems,” Barrett writes in opposition to Lochner. The Supreme Court “must not infringe on the democratic process by entrenching issues that the Constitution leaves open.”
Barrett thus favorably invokes, and cites, the Lochner dissent written by Justice Oliver Wendell Holmes Jr., who thought the Supreme Court had no business second-guessing the decisions of state regulators and should instead adopt a thoroughgoing posture of judicial deference.
For an originalist, the central question raised by Lochner is whether or not the Fourteenth Amendment, as originally understood, protects an unenumerated right to economic liberty.
According to the Holmes-Barrett view, the Fourteenth Amendment does not.
But the historical evidence says otherwise. According to the principal author of section one of the Fourteenth Amendment, Rep. John Bingham (R–Ohio), “the provisions of the Constitution guaranteeing rights, privileges, and immunities” include “the constitutional liberty…to work in an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellow men, and to be secure in the enjoyment of the fruits of your toil.”
Furthermore, as I’ve previously noted, “even those who opposed the passage of the 14th Amendment agreed that it was designed to protect economic liberty from overreaching state regulation—indeed, that was a big reason why they opposed the amendment in the first place.” When both the friends and foes of a constitutional provision agree in real time about what it meant, their agreement counts as important historical evidence for the provision’s original public meaning. In this case, such evidence supports the position of the Lochner majority and undermines the position of the Lochner dissent.
Alas, Barrett’s book doesn’t mention any of this relevant historical material. Instead, she basically just echoes Holmes’s ahistorical dissent and leaves it at that.
That’s too bad. As Barrett herself put it, “interpreting the Constitution today require[s] us to understand its historical meaning.” Yet Barrett neglects to do that very thing in one of the main cases she invokes to support her position.”
“Although Trump frames his unprecedented use of the U.S. military to summarily execute drug suspects as “self-defense,” it plainly does not fit that description. By his own account, he has unilaterally decided to impose the death penalty on alleged drug traffickers for the sake of deterrence. That policy represents a stark departure from both military norms and criminal justice principles.
…
The Trump administration “has not even seriously tried to present a legal argument to justify the premeditated killing of the people aboard these two vessels,” former State Department lawyer Brian Finucane told The New York Times. “The U.S. president does not have a license to kill suspected drug smugglers on that basis alone.”
Rear Adm. Donald J. Guter, who served as the Navy’s top judge advocate general from 2000 to 2002, concurred. “Trump is normalizing what I consider to be an unlawful strike,” he said.
…
Trump does not claim the men whose deaths he ordered were engaged in literal attacks on the United States. The justification in both cases was that the targets were “transporting illegal narcotics,” which Trump dubiously equates with violent aggression.”
““nativism, xenophobia, and racism are hardly uniquely American phenomena. What makes them significant in America is that they run counter to the nation’s founding ideals. At least since the enshrinement of Enlightenment ideas of equality and inclusiveness in the founding documents of the new nation, to be a nativist in this country was to be in conflict with its fundamental tenets.””
“Public employees have robust protections against being fired for such speech, unless it proves exceptionally unpopular.
This feature of First Amendment jurisprudence, and the bad incentives it creates for cancel culture campaigns, is on full display following the horrific assassination of Charlie Kirk last week…
In a country where some 22 million civilians are employed by the government, the pool of people who’ve made nasty comments about Kirk naturally includes some public sector workers…
At first blush, this would suggest that even government employees who explicitly praised Kirk’s assassination have First Amendment protections against being fired for that speech, however distasteful.
Whether or not they can, in fact, be fired turns on how much their comments disrupt government operations.
Consequently, the more outrage that can be directed at a particular public worker’s employer, and the more of a headache retaining that worker becomes as a result, the less the First Amendment will protect them from losing their job.
That creates a powerful, toxic incentive to gin up anger at individual government workers as a means of erasing First Amendment protections they have for off-the-job speech…
Kirk was undoubtedly a polarizing figure. The strong feelings, both negative and positive, that he elicited in people are one reason his murder has become such a huge public conversation.
It’s inevitable in that context that some people will say intemperate, mean-spirited things about the man.
It’s foolish to trust online snitch-taggers to be judicious in determining who they’re going to try to get fired, particularly when the more outrage they can generate serves to route around First Amendment protections for government workers’ speech.”
Long term bond yields rose after the Fed cut. This is the bond market signaling to the Fed that the interest rate cut was not needed and that they have less confidence that the U.S. will remain solvent in the long term. We should watch and see if this signal maintains over the weeks to come.