Supreme folly
Hagen, John Jr.
THE LAST WORD SUPREME FOLLY John Hagen, Jr. The most famous dissent in American jurisprudence is Oliver Wendell Holmes's denunciation of court-ordered Social Darwinism in Lochner v. New York...
...Lochner struck down a law which forbade a particular class of employers to work their laborers more than sixty hours per week...
...As laissez-faire ideology once again overrides democratic consensus, our culture naturally displays increasingly Social Darwinist features...
...Undeterred by Holmes's rebuke, the Supreme Court went on dictating laissez-faire capitalism as constitutional law for more than thirty years...
...With grandiose declamations on "liberty," the Court struck down minimum wage laws, child labor laws, and much other social welfare legislation...
...The U.S...
...More recently, lower courts have taken libertarian ideology to even greater lengths...
...President Franklin D. Roosevelt proposed a "court-packing plan" that would overtly have politicized the Court by expanding its membership and allowing the rapid addition of New Deal justices...
...This chapter of American legal history is well recalled today...
...Holmes insisted that the "liberty" clause of the Fourteenth Amendment was not intended to trump popular sovereignty in the name of laissez faire...
...The Court simply dictates libertarian ideology and overrides the democratic consensus (some forty-four states had laws against assisted suicide when this opinion was released...
...The most flagrant example of this is Compassion in Dying v. State of Washington (March 1996...
...Beginning in the 1960s, the Supreme Court dictated a kind of sexual laissezfaire to the nation through its anti-censorship rulings...
...A constitutional crisis arose when the Court's libertarians persisted in overruling the democratic consensus during the Depression...
...The current outbreak of judicial libertarianism is not economic, but hedonic...
...John Hagen, Jr., is a lawyer who lives and works in Minneapolis.Minneapolis...
...Once more, libertarian judges are overriding democratic consensus and invoking the "liberty" clause of the Fourteenth Amendment as justification...
...Compassion in Dying, like Lochner, is a pure act of judicial legislation...
...Its constant impulse is to maximize individual choice in seeking pleasure and in avoiding pain, regardless of the common good...
...Court of Appeals declared that constitutional "liberty" includes a right to die in the manner one chooses, and furthermore includes a right to have poison prescribed by a physician...
...We must speak up...
...We stand in a constitutional crisis of a similar nature...
...In a florid opinion, the justices of the Gilded Age constitutionalized economic laissezfaire...
...The Ninth Circuit Court negates popular government as nonchalantly as did the Gilded Age justices in Lochner...
...The tragedy of casual teen-age sex and teen-age pregnancy, and now the emerging horror of euthanasia (with feeble old and handicapped people hounded to "die and get out of the way") are Darwinism at its rawest...
...It constitutionalized most erotic imagery and went on to con-stitutionalize access to contraceptives for unmarried people (a seemingly subtle change in law that has had enormous impact on the status of the family...
...The opinion itself weighs mountains of sociological data, delivers ideological speeches, then briskly dismisses all the reasons for laws against assisted suicide (for example, protection of the handicapped, protection of doctors' integrity...
...1 think that the word 'liberty,' in the Fourteenth Amendment, is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law...
...Supreme Court declared this law a violation of the "liberty" guaranteed by the Fourteenth Amendment...
...The Constitution, he added, "is made for people of fundamentally different views...
...We are embroiled in a constitutional crisis, as in the Depression, and we must once again convince the courts that they stand on untenable ground...
...Laissezfaire, after all, is nothing but an elegant French expression for imposing the law of the jungle...
...Then it aggressively constitutionalized abortion, imposing the most permissive abortion regime found anywhere in the Western world...
...With these threats in the air, the Court at last abandoned its practice of acting as an ideological su-perlegislature on marketplace issues...
...In this holding, the Ninth Circuit U.S...
...Herbert Spencer's Social Statics...
...The most famous dissent in American jurisprudence is Oliver Wendell Holmes's denunciation of court-ordered Social Darwinism in Lochner v. New York (1905...
...It conceded that the Constitution's "liberty" clauses contemplate a regime of ordered liberty, and do not dictate laissezfaire...
...Holmes's dissent in Lochner is scarcely longer than the Gettysburg Address, and nearly as masterful in stating central truths about American democracy...
...We must convince the courts that we are determined to govern ourselves through democratic argument and consensus, not to have libertarianism imposed on us by decree...
...In a well-known aphorism, Holmes stated: "The Fourteenth Amendment does not enact Mr...
Vol. 123 • September 1996 • No. 16
