Jun 17, 2010

Posted in Uncategorized

Scalia: Justice Kennedy’s Opinion propels us back to “the Lochner era.”

Scalia hates Lochner. Perhaps the biggest insult Scalia can hurl is to allege a Justice of propelling us back to the Lochner era. This is precisely what Scalia did in Stop the Beach.

The first problem with using Substantive Due Process todo the work of the Takings Clause is that we have held it cannot be done. “Where a particular Amendment ‘pro-vides an explicit textual source of constitutional protec-tion’ against a particular sort of government behavior,‘that Amendment, not the more generalized notion of“substantive due process,” must be the guide for analyzing these claims.’” Albright v. Oliver, 510 U. S. 266, 273 (1994) (four-Justice plurality opinion) (quoting Graham v. Connor, 490 U. S. 386, 395 (1989)); see also 510 U. S., at 281 (KENNEDY, J., concurring in judgment) (“I agree with the plurality that an allegation of arrest without probable cause must be analyzed under the Fourth Amendmentwithout reference to more general considerations of due process”). The second problem is that we have held for many years (logically or not) that the “liberties” protectedby Substantive Due Process do not include economic liber-ties. See, e.g., Lincoln Fed. Labor Union v. Northwestern Iron & Metal Co., 335 U. S. 525, 536 (1949). JUSTICE KENNEDY’s language (“If a judicial decision . . . eliminatesan established property right, the judgment could be set aside as a deprivation of property without due process of law,” post, at 3) propels us back to what is referred to (usually deprecatingly) as “the Lochner era.” See Lochner v. New York, 198 U. S 45, 56–58 (1905).

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