by David Gordon, Mises.org

[How Progressives Rewrote the Constitution. By Richard A. Epstein. Cato Institute, 2006. xiii + 156 pages.]

“Lochner-era jurisprudence” elicits a mindless sneer from  most contemporary legal theorists. In Lochner v. New York (1905), the Supreme Court held unconstitutional a New York state law that limited bakers to a ten-hour workday, on the grounds that the law interfered with the bakers’ freedom of contract. In doing so, the law violated the clause of the Fourteenth Amendment that forbids any state from depriving anyone of life, liberty, or property, without due process of law. Critics of the decision allege that the Court’s application of “substantive due process” in this case and others like it was a legal outrage. The Court wrongly imposed its own view of economic matters, usurping popular sovereignty. As Oliver Wendell Holmes famously said in dissent, “The 14th Amendment does not enact Mr. Herbert Spencer’s Social Statics.” Further, critics of Lochner allege, the pre-New Deal Court acted in other highhanded ways to thwart the people’s will. Continue Reading

Kevin Gutzman’s new book, The Politically Incorrect Guide to the Constitution, might be the best available overview of the principles of limited government as espoused by the Tenth Amendment.

After reading this book, you’ll see quite clearly that the original constitution has very little in common with how this government is run today (if you haven’t noticed already!) The 10th Amendment has been pushed aside and the federal government runs rampant - exercising powers that the founders would never have dreamed of giving to any politician. Continue Reading

The San Francisco Chronicle Reports:

Attorney General Alberto Gonzales on Wednesday warned federal judges not to meddle in cases involving national security, following a string of judicial rebukes of the Bush administration’s anti-terrorism initiatives.

In a speech to the conservative think tank American Enterprise Institute, Gonzales said federal judges are not “equipped to make decisions about” actions the president takes in the name of preserving national security.

Let’s be clear here. It is absolutely the role - the mandate - of the judicial branch to make decisions on whether or not the actions of the president (the whole government for that matter) fall within the powers allowed by the Constitution.

But wait, there’s more:

Gonzales added that the judiciary should show deference to the executive branch when national security is involved, because, unlike the Bush administration, judges “don’t have embassies around the world gathering up information.”

Whether or not this is now “official policy” is not the issue. The fact remains that a high-ranking executive branch official gave a “direction” to the judicial branch to stop looking at the constitutionality of the actions of the executive. Sounds pretty strange, doesn’t it?

The federal government cannot legally wield any power that is not specifically granted by the Constitution. According to the Tenth Amendment, powers not expressly delegated to the federal government are reserved “to the states respectively or to the people.”

Nowhere in the Constitution is there a power to allow the executive to direct the judiciary in any way. Nowhere in the Constitution is there a power for the judiciary to decline to ajudicate actions by the government because of a “direction” or “recommendation” by the Attorney General.

Since these powers are not delegated to the federal government, then they must be among those powers reserved “to the states respectively or to the people.” Simply put, the executive branch is not constitutionally empowered to “meddle” in the affiars of the Judiciary, whatsover.

The courts are the last line of defense that “we the people” have to protect ourselves from abuses by the legislative and executive branches. If judges collude with either of the other two branches of government, then the separation of powers, and thus, all hopes for individual liberty, will collapse.

If this becomes policy of the executive, or practice of the judiciary, there will be an absolute need for us to call for the resignation or impeachment of judges who refuse to carry out their duty.