Justice Holmes and the Empty Constitution (Part 3)

In Part 2, we examined Justice Holmes’s short but influential dissent, which argued that the majority’s reliance on “right of contract” was a mere expression of the judges’ subjective preferences, not deserving the force of law. The Constitution, Holmes argued, is empty of any principles limiting government’s power over the individual. In Part 3, we’ll survey the disastrous impact of Holmes’s dissent up to the present day.

Lochner’s legacy: empty robes

Although the Lochner decision was influential for a time, it was ultimately overshadowed by Holmes’s dissent. During the 32-year period (1905–1937) known as “the Lochner era,” the Supreme Court occasionally emulated the Lochner majority by striking down state laws in the name of individual liberty.¹ For example, the Court overrode laws setting minimum wages for women, banning the teaching of foreign languages to children, and requiring children to attend public schools.² But then, in 1937, at the height of the New Deal, the Court “finally ended the Lochner era by upholding a state minimum wage law.”³ A year later, the Court announced that all economic intervention would be presumed valid, unless a “specific prohibition of the Constitution” (for instance, Article I’s ban on export taxes at the state level) said otherwise.⁴ In effect, any new exercise of government power over the economy was now presumed innocent until proven guilty. As the Supreme Court said in another New Deal case, “A state is free to adopt whatever economic policy may reasonably be deemed to promote the public welfare,” and the “courts are without authority . . . to override it.”⁵ One scholar summarized the sea change this way: “When the New Deal Court repudiated Lochner after 1937, it was repudiating market freedom as an ultimate constitutional value, and declaring that, henceforth, economic regulation would be treated as a utilitarian question of social engineering.”⁶ The Lochner majority was last cited approvingly by the Supreme Court in 1941.⁷

Holmes’s dissent was instrumental in consigning the Lochner decision to legal hell. According to liberal Justice Felix Frankfurter, the dissent was “the turning point” in a struggle against “the unconscious identification of personal views with constitutional sanction.”⁸ Echoing Holmes, conservative theorist Robert Bork has reviled Lochner as a “notorious” decision that enforced “an individual liberty that is nowhere to be found in the Constitution itself.”⁹ Added Bork: “To this day, when a judge simply makes up the Constitution he is said ‘to Lochnerize.’ . . .”¹⁰ Other commentators agree: “Supreme Court justices consistently use Lochner as an epithet to hurl at their colleagues when they disapprove of a decision declaring a law unconstitutional.”¹¹ “We speak of ‘lochnerizing’ when we wish to imply that judges substitute their policy preferences for those of the legislature.”¹² Typical of modern attitudes are the Washington Post’s reference to the “discredited Lochner era”¹³ and the New York Times’sobservation that the era “is considered one of the court’s darkest.”¹⁴

With the canonization of Holmes’s Lochner dissent, a miasma of judicial timidity seeped into America’s courtrooms. More than sixty years have elapsed since the Supreme Court last struck down an economic regulation on grounds that it violated unenumerated property or contract rights. And in the noneconomic realm, the Court’s Lochner-esque decision in Roe v. Wade (1973) generated fierce public and professional backlash, discouraging further forays of that type. In Roe, a decision “widely regarded as the second coming of Lochner,” a sharply divided Court held that the Constitution protects a woman’s right to abort her first-trimester fetus.¹⁵ Here, one must carefully distinguish the method of that Court’s decision from its specific content. Because the Constitution does not expressly authorize states to ban abortion, the Court was entitled to evaluate the law’s validity in light of the Constitution’s fundamental commitment to protecting individual liberty (including that of women, regardless of any errors the Founders may have made on that score). One can agree with that liberty-oriented approach and yet still acknowledge the Court’s failure to apply it persuasively. (Essentially, the Roe Court recited a grab bag of pro-liberty clauses and precedents and invited the reader to choose a favorite.)¹⁶

Predictably, however, conservatives have aimed their critical arrows—dipped in the venom of Holmes’s dissent — straight at Roe v. Wade’sconclusion that the Constitution protects individual liberty. Those arrows struck home. A large segment of the public now believes that any such holding, no matter how firmly grounded in the Constitution’s language and history, is merely rhetorical camouflage for judges’ assumption of extra-constitutional power to impose their own personal opinions on the law.¹⁷ Little wonder that recurring public protests and even death threats have dogged the Court ever since. Fear of similar backlash has hindered the administration of justice in other areas as well. For example, the Court needed seventeen years of hand-wringing to finally decide, in Lawrence v. Texas (2003), that the Constitution does not permit gays to be thrown in jail for private, consensual sex.¹⁸ Dissenting in that case, Justice Scalia referenced Lochner obliquely, asserting that the Constitution no more protects homosexual sodomy than it does the right to work “more than 60 hours per week in a bakery.”¹⁹

Notwithstanding occasional hard-won exceptions, the emasculated Supreme Court now spurns virtually every opportunity to search the Constitution for underlying principles that place limits on state power. A few years ago, when Suzette Kelo’s house was seized under the eminent domain power for transfer to a private developer in Connecticut, she took her case to the Supreme Court—only to be told that the Constitution offers her no protection.²⁰ Abigail Burroughs, terminally ill with neck and head cancer, died several years before the Court disdainfully turned its back on her survivors’ plea for a constitutional right to use experimental life-saving medicine unapproved by the Food and Drug Administration.²¹ And Dr. Harold Glucksberg, a physician whose terminally ill patient sought a painless suicide, lost his case on the grounds that offering voluntary medical assistance at the end of life is not “deeply rooted in this Nation’s history and tradition.”²² Cases such as these have made it painfully clear to Americans that their Constitution—as interpreted by the modern Supreme Court—imposes no principled limits on the state’s power to dispose of their property and lives. If more proof is necessary, observe that both the Bush and Obama administrations, in recent highly publicized legislation, have dramatically expanded government control of the economy and of private businesses without any discernible worry that the Supreme Court will trouble itself over the rampant abrogation of private property and contract rights.

Lochner’s other legacy: an empty debate

By arguing that the Constitution is nothing but a highly formalized mechanism for molding subjective opinions into law, Holmes shifted the terms of public debate toward discussion of whose subjective opinions count. Beginning in the 1980s, conservatives such as Edwin Meese III, the U.S. attorney general under Ronald Reagan, and Robert Bork, federal judge and failed Supreme Court nominee, successfully framed the alternatives for constitutional interpretation in Lochnerian terms. According to this view, judges have only two options: to emulate the majority in Lochner by brazenly enforcing their own subjective opinions—or to emulate Holmes in dissent by deferring to the subjective opinions of society (as manifested by legislative vote). In today’s parlance, this means judges must choose between “judicial activism” and “judicial restraint.”²³ On this basis, Holmesian conservatives routinely condemn Lochner v. New York, Roe v. Wade, Lawrence v. Texas,and similar cases asillegitimate exercises of raw judicial power, “activist” decisions unauthorized by the Constitution and dangerous to the body politic. According to Bork, Lochner “lives in the law as the symbol, indeed the quintessence, of judicial usurpation of power.”²⁴

Today’s liberals generally find themselves on the defensive against such conservative attacks. On the liberal view, a mechanically applied doctrine of “judicial restraint” would improperly tie judges’ hands, allowing legislative majorities unrestrained power to enact any law not expressly forbidden by the Constitution. As Judge Posner has observed, “This would mean that a state could require everyone to marry, or to have sexual intercourse at least once a month, or that it could take away every couple’s second child and place it in a foster home.”²⁵ But as an alternative to the folly of such “judicial restraint,” liberals offer dubious interpretive methods of their own. Rather than refute Holmes’s attack on the Lochner majority, liberals contend that the Constitution “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”²⁶ Or, as Al Gore pledged during his 2000 presidential run, “I would look for justices of the Supreme Court who understand that our Constitution is a living and breathing document, that it was intended by our founders to be interpreted in the light of the constantly evolving experience of the American people.”²⁷

In sum, neither conservatives nor liberals have advanced a method of interpretation aimed at objectively identifying and applying constitutional principles that limit the power of government over the individual. Instead, both factions accept the Holmesian model that makes all government action a matter of subjective social opinions. Although the factions differ in detail — conservatives are more likely to venerate freeze-dried opinions from centuries past, whereas liberals prefer a bubbling stew of modern sentiments — the current controversy is nothing but Lochner warmed over. As one legal history states more formally, “The majority and dissenting opinions in Lochner stand today as landmarks in the literature of judicial activism and restraint.”²⁸ So long as Lochner sets the terms of debate, Americans will continue to believe they face a Hobson’s choice between judicial eunuchs who passively allow legislatures to dominate a helpless populace—and judicial dictators who actively impose their own personal prejudices on that same helpless populace. Given those alternatives, it is no wonder that Holmesian conservatives are winning the public debate. Any citizen who wants to have some slight influence on the “dominant opinion” will more likely prefer an all-powerful legislature beholden to the voting public, as against an all-powerful, life-tenured judiciary beholden to no one.

In recent decades, the bellwether of this struggle between “activism” and “restraint” has been Roe v. Wade—and so it will continue, until that fragile decision is either overruled or placed on a sound constitutional basis.²⁹ For many years now, the addition of a single conservative justice would have been enough to tip the balance against Roe. If that decision is finally overruled on Holmesian grounds, then the last ragged vestiges of a principled, content-filled Constitution will have succumbed. After that, it may become virtually impossible to hear the voices of the Constitution’s framers above the clamor of pressure groups competing to forge the next “dominant opinion.” Ultimately, the outcome may depend on whether dissenters from the Holmesian consensus continue to be exposed and ostracized at the judicial nomination stage, by means of the Lochner litmus test.

The Lochner litmus test

During his lifetime, Holmes took pleasure from the prospect that his work would have enduring influence after his death. He once spoke, with characteristic eloquence, of feeling

the secret isolated joy of the thinker, who knows that, a hundred years after he is dead and forgotten, men who never heard of him will be moving to the measure of his thought — the subtle rapture of a postponed power, which the world knows not because it has no external trappings, but which to his prophetic vision is more real than that which commands an army.³⁰

And indeed, the world is still “moving to the measure of his thought.” Holmes’s dissent is largely responsible for the “modern near-consensus that unelected justices have no mandate ‘to impose a particular economic philosophy upon the Constitution.’”³¹ Notably, President Obama’s regulatory czar, Cass Sunstein, is a former constitutional law professor who wrote an article, “Lochner’s Legacy,” stating that “for more than a half-century, the most important of all defining cases has been Lochner v. New York.”³² In this post-Lochner world, it is not intellectually respectable to hold that the Constitution embodies any particular view of the relationship between the individual and the state. A judge who dares to suggest otherwise will inevitably be accused of resurrecting Lochner. And a judicial nominee who fails to pledge allegiance to Holmes’s empty Constitution may be grilled and required to recant, on pain of losing a confirmation vote.

Consider two examples. Clarence Thomas, before being nominated to the Supreme Court, had said in a speech that “the entire Constitution is a Bill of Rights; and economic rights are protected as much as any other rights.”³³ When Thomas’s nomination reached the Senate, noted liberal constitutional scholar Laurence Tribe opposed confirmation in a New York Times op-ed that said: “Thomas would return the Court to the Lochner (1905) era—an era in which the Court was accused of sacrificing the health and safety of American workers at the altar of laissez-faire capitalism.”³⁴ Thomas later went on the record as rejecting a return to the Lochner approach and endorsing the line of cases that discredited the majority opinion.³⁵ The Senate then confirmed his appointment, but by a razor-thin margin (52–48). Similarly, in another confirmation fight fourteen years later, a young senator (and former law professor) named Barack Obama spoke out against the nomination of California appellate judge Janice Rogers Brown to the federal bench. It seems that Brown, in a public speech, had dared to disagree with Holmes, asserting that his “Lochner dissent has troubled me — has annoyed me — for a long time . . . because the framers did draft the Constitution with a surrounding sense of a particular polity in mind. . . .”³⁶ Obama leaped to the attack: “For those who pay attention to legal argument, one of the things that is most troubling is Justice Brown’s approval of the Lochner era of the Supreme Court.”³⁷ Predictably, Brown backtracked during her confirmation hearings, pledging that she would not really pursue a Lochner approach.³⁸ She was then confirmed, narrowly, by a 56–43 vote.³⁹

As President Obama and the Senate gear up to select a replacement for retiring Justice David Souter, the Lochner litmus test will once again serve as a powerful tool for identifying a nominee’s fundamental approach to construing the Constitution. The alternatives embodied in Lochner will be trotted out once again, and candidates will be invited to condemn the discredited majority approach and endorse the Holmesian view.

But what if the opinions set forth in Lochner do not exhaust the alternatives? What if judges can properly aspire to be, not petty despots or passive rubber stamps, but objective interpreters of a constitution by means of its fundamental principles? The question deserves attention, before the Supreme Court sinks into a timorous lassitude from which it cannot recover.

The path not taken

Justice Holmes took advantage of clashing precedents to claim that the Constitution lacks all content, that the nation’s fundamental law is agnostic on the issue of man’s relation to the state. But Holmes was wrong about the empty Constitution. Not only is the document saturated with substantive content, but the deliberate disregard of that content inevitably left an interpretive vacuum where the Founders’ framework once stood, a vacuum that had to be filled by some other principle of man’s relation to the state. If the Lochner dissent was to be taken seriously, the individual had to be treated on principle as a rightless creature doomed to cringe before the “natural outcome” of society’s “dominant opinion,” and the Constitution had to be regarded on principle as an institutional juggernaut imposing society’s shifting, subjective opinions on recalcitrant individuals. Thus by intellectual sleight of hand, Holmes managed to radically redefine the Constitution’s content while presenting himself as the very soul of content-neutrality. And for more than a century now, we have been “moving to the measure of his thought,” following Holmes’s path into that shadowy, clamorous jungle where pressure groups struggle incessantly for the privilege of imposing their arbitrary “dominant opinions” on others, by force of law—while individuals are legally helpless to resist ever-growing assaults on their lives, liberties, and property. Only by retracing our steps and revisiting the Lochner decision with a different mind-set can we hope to find a clearer road.

The Lochner case arrived at the Supreme Court in the posture of a dispute over whether a restriction on working hours was a health law or not. But in his dissent Holmes highlighted a more fundamental issue: Does the Constitution protect the principle of liberty of contract? If so, then the government’s so-called police power is and must be severely limited — limited by the principle of the inalienable rights of the individual. But if a principle is a general truth that guides action in every case where it applies, brooking no exceptions, then surely neither the “police power” nor “liberty of contract,” as defined by the Court at that time, qualified as a genuine principle. The vague and undefinable “police power” gave society virtually unlimited control over the individual—yet even in Holmes’s view, that power was somehow subordinate to the equally vague “traditions of our people and our law.” On the other hand, “liberty of contract” supposedly protected an individual’s right to dispose of his labor and property—except in the dozens of situations where the police power could override it. How could a judge possibly know when to apply one and not the other? There was no objective basis for choosing.

Despite the lack of clear, consistent principles to govern cases such as Lochner’s, a Supreme Court justice with Holmes’s penetrating philosophical skills could have explained, even in 1905, why both Holmes and the majority were erring in their approaches to Lochner’s case. That explanation would have had to begin with the realization that every constitution embodies some particular view of the individual’s relation to the state. Although Holmes was wrong to deny that the Constitution has content, the majority was also wrong in its interpretation of that content. On that score, it was surely preposterous for Justice Peckham to concede that individuals’ liberty and property are held in thrall to each state’s “vaguely termed police powers, the exact description and limitation of which have not been attempted by the courts.” After all, the term “police power” is not even mentioned in the Constitution, and nowhere does the document require that states be allowed to legislate for the “safety, health, morals and general welfare of the public,” a shapeless pile of verbiage that could excuse almost any law, regardless of content. Although it is true that the states in a federal system must be recognized as possessing power to enact and enforce laws, there was never any need to define that power in a way that threatened the Constitution’s underlying framework of protection for individual rights. Under a more objective concept of New York’s “police power,” therefore, the Court’s inquiry would have shifted to whether the Bakeshop Act protected Lochner’s rights or violated them.

As to what Lochner’s individual rights entailed, again the Constitution’s content could not properly be ignored. For example, the document’s references to the inviolable “obligation of contracts” (Article I), unenumerated rights “retained by the people” (Ninth Amendment), citizens’ inviolable “privileges or immunities” (Fourteenth Amendment), and individuals’ rights to “life, liberty, and property” (Fourteenth Amendment), all would have been recognized as relevant. Although it is not self-evident which clauses might apply to a particular case, or how they should be interpreted to help resolve a given dispute, there is no constitutional obstacle to defining “liberty of contract” as a principle subsuming an individual’s unassailable freedom to trade his property, his money, and his labor according to his own judgment. Contra Holmes, general propositions can decide concrete cases, if those propositions are objectively defined. But such definition is impossible, at the constitutional level, so long as judges refuse to acknowledge that government exists for any particular purpose.

None of this is to deny that constitutional interpretation can be fraught with difficulty. Reasonable judges can arrive at different interpretations, especially in cases at the intersection of individual rights and legitimate exercises of government power. And even the most incisive interpretations cannot, and should not attempt to, rewrite the Constitution. So, for example, as long as the Post Office clause resides in Article I, the Supreme Court cannot abolish that ponderous government monopoly — even if it violates liberty of contract in obvious ways. Moreover, the Court must pay due respect to precedent, while never allowing an injustice to survive any longer than may be necessitated by innocent reliance on prior erroneous rulings. But in the mind of an objective judge, none of these pitfalls will obscure the fact that the Constitution has content — a specific view of the proper relation between man and the state—which content cannot be ignored without betraying the Court’s duty of objective interpretation. To take the purpose of government into account when interpreting the Constitution’s express language is not a judicial usurpation of power. On the contrary, it is an essential part of objective interpretation, no more in need of special authorization than is the use of concepts or logic.⁴⁰

Ayn Rand once observed that Justice Holmes “has had the worst philosophical influence on American law.”⁴¹ The nihilistic impact of his Lochner dissent alone is enough to justify her claim. But it is not too late for a new generation of jurists to target that influence for elimination, by embarking upon the mission that Holmes and his brethren should have undertaken a century ago. Tomorrow’s jurists will need to honestly confront Lochner, that “most important of all defining cases” in American jurisprudence, with the understanding that neither the majority nor the dissents in that case properly took into account the Constitution’s substantive content. They will need to challenge the false Lochnerian alternatives of “judicial activism” and “judicial restraint.” And they will need to question whether, and on what grounds, Lochner should continue to serve as a litmus test for Supreme Court appointees. Once the “ghost of Lochner” has ceased to haunt American constitutional law, the Supreme Court can assume its proper role as ultimate legal authority on the objective meaning of America’s founding document.

A version of this article was previously published in The Objective Standard, Summer 2009.

1. Some legal historians hold that the Lochner Era actually began in 1897, when the Supreme Court in Allgeyer v. Louisiana struck down a state insurance law that interfered with contractual freedom.
2. Adkins v. Children’s Hospital,261 U.S. 525 (1923); Meyer v. Nebraska,262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925).
3. Adam Cohen, “Looking Back on Louis Brandeis on His 150th Birthday,” New York Times (November 14, 2006), A26. In West Coast Hotel v. Parrish, 300 U.S. 379 (1937), the Court upheld a state minimum-wage law for women.
4. United States v. Carolene Products,304 U.S. 144, 152 n.4 (1938).
5. Nebbia v. New York, 291 U.S. 502, 537 (1934).
6. Bruce Ackerman, We the People: Transformations (Cambridge, MA: Harvard University Press, 2000), 401.
7. United States v. Darby, 312 U.S. 100 (1941); see Ackerman, We the People, 375.
8. Quoted in White, Justice Oliver Wendell Holmes, 362.
9. Robert Bork, “Individual Liberty and the Constitution,” The American Spectator, June 2008, 30, 32.
10. Robert H. Bork, The Tempting of America: The Political Seduction of the Law (New York: Touchstone, 1990), 44.
11. Bernstein, review of Phillips, The Lochner Court, Myth and Reality,231.
12. William M. Wiecek, Liberty Under Law: The Supreme Court in American Life (Baltimore: Johns Hopkins University Press, 1988), 124.
13. Bruce Fein, “Don’t Run from the Truth: Why Alito Shouldn’t Deny His Real Convictions,” Washington Post, (December 18, 2005), B1.
14. Adam Cohen, “Last Term’s Winner at the Supreme Court: Judicial Activism,” New York Times (July 9, 2007), A16.
15. Posner, Law and Literature, 271; 410 U.S. 113 (1973).
16. Roe v. Wade, 410 U.S. 113, 152 (1973).
17. According to a 2019 Pew Research Center public opinion poll, 28 percent of respondents believe the Supreme Court should “completely overturn” its decision in Roe v. Wade: https://www.pewresearch.org/politics/2019/08/29/u-s-public-continues-to-favor-legal-abortion-oppose-overturning-roe-v-wade/ (last accessed March 25, 2021). A 2008 Gallup poll on the same issue found that 33 percent would like to see the decision overturned: http://www.gallup.com/poll/110002/Will-Abortion-Issue-Help-Hurt-McCain.aspx (last accessed March 25, 2021). On average, about one-third of Americans disapprove of the way the Supreme Court is doing its job: http://www.gallup.com/poll/18895/Public-Divided-Over-Future-Ideology-Supreme-Court.aspx (last accessed March 25, 2021).
18. In the 1986 case of Bowers v. Hardwick, 478 U.S. 186, the Supreme Court held that homosexual conduct between consulting adults in their home could be criminally punished. Not until 2003 did the Court, in Lawrence v. Texas, 539 U.S. 558, strike down a state law that put gays in jail — and then only by a 6–3 vote.
19. 539 U.S. 558, 592 (Scalia, J., dissenting).
20. Kelo v. City of New London, 545 U.S. 469 (2005).
21. “Court Declines Experimental Drugs Case,” USA Today, January 14, 2008, http://www.usatoday.com/news/washington/2008-01-14-280098622_x.htm (last accessed March 25, 2021).
22. Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997).
23. Although today’s legal professionals debate such interpretive concepts as “public-meaning originalism,” “living constitutionalism,” and judicial “humility,” it is the activism/restraint dichotomy that continues to dominate public discussion outside the courts and academia.
24. Bork, The Tempting of America, 44.
25. Richard A. Posner, Sex and Reason (Cambridge, MA: Harvard University Press, 1992), 328.
26. Trop v. Dulles, 356 U.S. 86, 101 (1958).
27. Transcript of Democratic Presidential Debate, Los Angeles, California, March 1, 2000, http://edition.cnn.com/TRANSCRIPTS/0003/01/se.09.html (last accessed March 25, 2021).
28. Ronald M. Labbé and Jonathan Lurie, The Slaughterhouse Cases: Regulation, Reconstruction, and the Fourteenth Amendment (Lawrence: University Press of Kansas, 2003), 249.
29. In a 1992 case, Planned Parenthood v. Casey, 505 U.S. 833, a plurality of the Supreme Court singled out the Fourteenth Amendment’s concept of “liberty” as the proper basis for upholding a woman’s qualified right to abortion. However, the Court also reaffirmed Roe’s holding that the states have “their own legitimate interests in protecting prenatal life.” 505 U.S. at 853. Hence this entire line of cases remains vulnerable to the Holmesian critique in Lochner. If the “police power” can be interpreted to have no limits, then why not the state’s “legitimate interests in protecting prenatal life”?
30. Posner, The Essential Holmes, 220 (correcting Holmes’s obsolete spelling of “subtle” as “subtile”). In a similar vein, Holmes gave a eulogy in 1891 praising men of “ambition” whose “dream of spiritual reign” leads them to seek the “intoxicating authority which controls the future from within by shaping the thoughts and speech of a later time.” Posner, The Essential Holmes, 214.
31. Stuart Taylor Jr., “Does the President Agree with This Nominee?” TheAtlantic.com, May 3, 2005, http://www.theatlantic.com/doc/200505u/nj_taylor_2005-05-03 (last accessed March 25, 2021).
32. Cass R. Sunstein, “Lochner’s Legacy,” Columbia Law Review, vol. 87 (June 1987), 873.
33. Quoted in Scott Douglas Gerber, First Principles: The Jurisprudence of Justice Clarence Thomas (New York: NYU Press, 2002), 54.
34. Ibid.,54.
35. Ibid.,54–55; Dworkin, Freedom’s Law, 308–10.
36. Janice Rogers Brown, “‘A Whiter Shade of Pale’: Sense and Nonsense—The Pursuit of Perfection in Law and Politics,” address to Federalist Society, University of Chicago Law School, April 20, 2000, http://ejournalofpoliticalscience.org/janicerogersbrown.html (last accessed March 25, 2021).
37. “Remarks of U.S. Senator Barack Obama on the nomination of Justice Janice Rogers Brown,” June 8, 2005, http://obamaspeeches.com/021-Nomination-of-Justice-Janice-Rogers-Brown-Obama-Speech.htm (last accessed March 25, 2021).
38. Taylor, “Does the President Agree with This Nominee?” supra.
39. In addition, the late Bernard H. Siegan, a professor at the University of San Diego School of Law, was rejected by the Senate for a seat on the U.S. Court of Appeals based largely on the support for the Lochner decision expressed in his book, Economic Liberties and the Constitution. See Larry Salzman, “Property and Principle: A Review Essay on Bernard H. Siegan’s Economic Liberties and the Constitution,” The Objective Standard, vol. 1, no. 4 (Winter 2006–2007), 88.
40. Promising work on objective judicial interpretation is being undertaken by Tara Smith, professor of philosophy, University of Texas at Austin. See “Why Originalism Won’t Die — Common Mistakes in Competing Theories of Judicial Interpretation,” Duke Journal of Constitutional Law & Public Policy, vol. 2 (2007), 159; “Originalism’s Misplaced Fidelity,” Constitutional Commentary, vol. 25, no. 3 (forthcoming, August 2009).
41. Quoted in Marlene Podritske and Peter Schwartz, eds., Objectively Speaking: Ayn Rand Interviewed (Lanham, MD: Lexington Books, 2009), 60.