“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.”
“Defense Secretary Pete Hegseth approved sending up to 600 military lawyers to the Justice Department to serve as temporary immigration judges. It is part of the steps the Trump administration has taken to use the military in broader ways than previously seen, particularly in its immigration crackdown, including sending the National Guard into American cities and deploying active duty troops to the U.S.-Mexico border.
“These military officers would serve under the command and control of the Attorney General and would execute administrative determinations at the direction of the Attorney General,” according to the letter signed by 12 Democrats on the Senate Armed Services Committee. It added that “these actions are inherently law enforcement actions that may not be performed by members of the armed forces.””
“Chief Justice John Roberts is allowing President Donald Trump to put a Joe Biden-appointed member of the Federal Trade Commission out of her post while the Supreme Court considers a longer-term resolution of the legal battle over her firing.”
So, whether it’s legal or not, Trump gets to go ahead and do it, and even if it turns out to not be legal, much damage will be done and the law ineffective.
“”A lot of the problems with criminal justice in Washington lie in the federal courts where the city’s major prosecutions happen,” writes Josh Barro on Substack, imploring his fellow Democrats to be less dismissive about crime and to offer workable alternatives to Trump’s show-of-force plan. “There are too many judicial vacancies, and the U.S. Attorney’s office has been declining too many prosecutions, meaning too many criminals go free and too many miscreants believe they will get away with crime. Fixing those prosecutorial problems is a federal responsibility—Democrats should say that if Trump wants to be tough on crime, he can start by making sure prosecutors are bringing enough cases and there are enough judges to hear them.””
Supporters of textualism act like it is a simple way of reading the law, but judges who practice textualism often claim a clear text is ambiguous or an ambiguous text is clear based on what fits their political or ideological bias.
“The judge found that many of those swept up in immigration raids were taken to the basement of a federal building in Los Angeles to a room known as “B-18” meant to temporarily house arrestees while they are being processed. Frimpong found that many detainees were held there for hours without access to counsel.”
“”Due process is the most foundational legal principle protecting individual liberty in Western civilization. It dates back to the Magna Carta,” Bolick observed. Yet “we have seen the words due process appear in quotes repeatedly, as if this concept was created by rogue liberal judges to help illegal immigrants stay in the country.””
…
“Bolick is a principled legal thinker and one of the genuine good guys in American law. If he is worried about the health of our constitutional order, we should all pay heed.”