That the court had created an insurmountable barrier to reform. Thing lochner is that the lochner is that the lochner has nothing to do with sense. A fundamental a contract is a voluntary agreement between two people. It involves some degree of meeting of the minds and dealing at arms length. Those conditions were clearly employeremployee relations in a newly industrialized economy of the turn of the 20 century. Law wasal target of the the conditions of labor in new york seller bakeries. These were typical of many wage earning jobs of that era. Working conditions in these bakeries were atrocious. There were located in tenement bases, damp, dark, filthy, and they had ceilings as low as five and a half feet high. Poor ventilation caused them to be stifling hot when the ovens were on. Work involved heavy lifting, and their pay was low compared to other jobs. Understandtant to that the workers were typically paid by the day or the week, and the number of hours a person worked was unilaterally determine by the employer. Main complaint was the number of hours they were required to work or it by 1895, when the bakeshop law was passed, and many bakers work more than 100 hours per week. Why in the world would anyone in their right mind agreed to work and such terrible conditions for so many hours and so little pay . The answer is that the economic circumstances gave them no choice. The shorterate of Hours Movement put it, and antistomach can make no contract. Stomach can make no contract. As applied in the lochner case, a guaranteed little to workers of the time the size what might be described as the right to integer oneself for the day or the week. Oneself for the day or the week. If the doctrine of the liberty of contract that raises the was not, if lochner about the liberty of contract, what was it about . The answer is that it was part of a more sweeping history. That history held that the constitution implied a right to businesses and individuals to be free from government regulation. S. Was revolutionary revolutionary and controversial because it ran contrary to the traditional american views of the relationship between Property Rights and he duty of the state to regulate in the public interest. It did not originate with lochner, but lochner came to symbolize the acceptance of it. The right to be free from government regulation is not expressly guaranteed in the constitution, therefore any argument in favor of it depends on the claim that it is a dominant characteristic of our constitutional tradition. The 1980s, many legal historians have attempted to do just that. They have maintained that it is an expression of a longstanding american tradition of a limited government reflected in jeffersonian democracys mistrust of of government. Is some truth to these observations, a closer look at history demonstrates that when it came to regulation of business, the tradition of limited government existed more in theory than it did in practice. States routinely regulated the economy, licensing building and regulate public markets, controlling the quality and quantity and the price of goods. Even the condition of employment, which was then called the law of masterservant are common examples of the state regulating the economy in the public interest. There may be a tradition of limited government in american theory, but the prevalence of such a wide range of regulations demonstrates that another tradition actually dominated in daily life. That tradition was expressed in terms of the states duty to use its authority, described as the police power, to protect the rights of the people or the rights of the community, and it was rooted in an american ideal that links liberty with popular sovereignty and democracy. And theition tradition was not just predominate in daily life, but also constitutional doctrine. , the object ofe all governments is to promote the happiness and prosperity of the community. While the rights of private property are guarded, we must not forget that the Community Also has rights, and the happiness and wellbeing of every citizen depends on their faithful preservation. 1877, a chief justice expressed the same sentiment. He observed that under the police power, the government regulates the conduct of its citizens, one towards another, and the manner in which he show uses property when such regulation becomes necessary for the public good. Part of this tradition of the rights of the community and popular sovereignty was an understanding that private individuals and businesses can be every bit as much a threat to liberty as government. Especially when they wheeled and normas economic power. Lochner liberty of contract doctrine lasted until it was rejected. Majority, thee chief justice return to the old tradition that recognize the authority of the states to use their police power to balance Property Rights with the rights of the community or the public good. That a wide field of discretion to protect the health public, butf the also emphasized that the police power included promoting the piece in good order to regulations designed to ensure wholesome traditions of work and freedom from oppression. Concludedjustice then , the exploitation of a class of workers who are in a nonequal position with respect to Bargaining Power and are thus defenseless against the denial of a living wage is not only detrimental to their health and wellbeing, but casts a direct burden of support on the community. I began by observing that politicians, judges, and constitutional scholars still tend to rank lochner with dread scott as the worst decisions in history. Lochner deservesat tour its reputation. The constitutional tradition out of which it was based existed more in theory than in practice. It failed to recognize and appreciate the realities and conditions of america in the newly industrialized economy. Thank you. [laughter] [applause] now to professor barnett. Thank you for that introduction. Thank you for coming today. Agree about quite a bit. Do weestion is how adjudicate such a disagreement in front of an audience like this. Let me just disagree with one thing of the many things paul just said. He said that lochner was part of an era in which there was supposedly a belief and a right to be free from government regulation, and that is what makes lochner so evil, that there is a right to be free from government regulation. I can prove that this is false, that this claim, that there was a belief and a right to be free of government regulation. I would rely on a case to support this proposition. Is case i would rely on lochner v. New york. Why do i say that . The statute that was at issue in lochner v. New york was called the take shop act. Shop act. It was an extension of the health and safety of the operation of bake shops. It was passed to address the conditions that were rightfully pointed out. Not all were like this, but there were bake shops like this. It included regulating the height of ceilings, the composition of floors, regulating how often they had to be whitewashed, regulating the location of the ovens, where people could sleep relative to those ovens, regulating the washroom facilities, the animals that could be present on the premises, caps on late. Cats only. It was an extensive body of regulations. Toyou want an easy place identify the text of the statute without having to search too hard, all you have to do is read the majority opinion in lochner because they reproduce the text of the bake shop act. No one questioned the constitutionality of the bake shop act as an exercise of police power for the state of new york. That included the majority of the Supreme Court in the lochner case, including a justice who cited the entire act as an example of a legitimate health and safety law. It seems as though since that was an extensive regulation, set ,f government regulations addressing health and safety concern is demonstrably false good if anyone thought there should be no regulation of the economic activity, it was certainly not the Supreme Court case. Lochner at issue was the single provision of the bake shop act. Thatwas a provision mandated or restricted the working hours of people who work in the bake shop. The proprietors good work as long as they like, but the employees werent limited to 60 hours and could not work more than that. There was one provision that was challenge, and that was the only provision invalidated. The rest was considered entirely constitutional. Or had was identifying it as a health and safety regulation because they could not see a close fit between that prohibition, which was a criminal prohibition, employing longer in the bake shop industry as a health and safety law. In reaching that conclusion, the court relied on an extensive appendix to the statute, which cited general statistics about the health and safety of the banking industry, and the court cited that and based its opinion in part on those empirical studies cited in the brief challenging the statue. Given that, how did lochner assume the case . Iso agree that lochner considered to be a terrible case, and a case that sometimes ranks with dread scott. How did that come to pass . This is a question of constitutional narrative. One thing i teach when i teach constitutional law is that the practice of constitutional law is not the way i teach contract law. With contract law, you learn a body of doctrine, the doctrine of consideration, the statute of frauds, and you apply that doctrine to fax. Constitutional law be practiced like that, but it is not. It is largely practiced by the canonical cases and the anticanonical cases. The canonical cases are those rightly cited. Cases are theical ones considered to be evil and wrong. If the argument youre making or you can convince the court your opponents are making is going to lead to undermining one of the canonical cases, then they are in trouble. If it endorses one of the anticanonical cases, than they are in trouble. So everyone has to know which cases are which. Thener is clearly in anticanning, but when did it get there . One would think it had been there for a long time. Was it there when it was decided . It turns out it was not there. When it was decided, it was a monday in case. It did make the newspapers, thats true, but the newspapers editorialized in favor of the lochner case. The New York Times did, the Washington Post did, the Los Angeles Times did. The didre a couple of it come a particular labor union newspapers, but the General Press did. It was not considered to be an a popular case of the time. The person who made it, sort of the Citizens United of the day, shall we say, was none other than republican theodore roosevelt, progressive republican theodore roosevelt. Roosevelt served as president , then he was out of office for a term, then he saw the nomination of the Republican Party again in 1912. As he ran for office, one of the planks was condemning the interference of the Supreme Court with progressive era legislation. Famous address covered on the front page of the New York Times in Carnegie Hall in which he lambasted the Supreme Court and lambasted what he called the bake shop case. Be called by the generic names, the lottery case, would it be nice if we did that again . We now have to memorize these names. At any rate, it was the bake shop case, and he extolled the virtues of his favorite justice, Oliver Wendell holmes junior in that speech and it made it into the headlines of the New York Times that he was praising homes in the lochner case. He was denied the republican nomination. He then moved to a thirdparty. It was called the progressive party. He helped to form the party and ran for that partys nomination, got it, and ran as a thirdparty under the progressive party. It split the republican vote and allowed Woodrow Wilson to become president. Firstas lochners appearance on the stage. You would now think its going to be a famous thing from now on, but it went into obscurity. It wasnt talked about. There was a big debate about the role of courts however, and Justice Holmes dissenting opinion made him one of the champions of the progressives arguing for judicial restraint against progressive legislation, arguing the courts had no business interfering with the policymaking that was being done at the state, federal level, so the call for judicial selfrestraint became a clarion call, and homes was a champion of that in his lochner dissent. Being relatively , a brief interlude, because once the Supreme Court was entirely appointed by progressive president s, theodore roosevelt, then Woodrow Wilson, then herbert hoover, and finally franklin roosevelt. Progressiveour president s appointing judges, so the court became increasingly progressive. But a time it completely adhered to this doctrine of judicial restraint, something happened that caused some of the justices to rethink their views. The something that happened was the republicans took control of congress in 1946. Once the republicans took 1946, the congress in idea of judicial restraint started not to seem like such a wonderful idea anymore, so that the idea that no matter what congress would do, we would defer to it. Some of the justices started to have second thoughts about this, and a very interesting article was written in Fortune Magazine about this development by a historian, who was a very famous new deal progressive historian, harvard man, good harvard man, and he writes the story and devise the court up into two contending groups. The first group he calls the liens of selfrestraint. They are people like Felix Frankfurter and others. The other group is called judicial activist. It is the first time we know the term judicial activism was used. In the article, he says what the people had decided was they were starting to reconsider this restraint idea. The probably for was not that judges were at politically and getting in the way of populist legislation, we were off based on that. The probably said was that it was inevitable that the judges would be acting politically, the question was what were they acting politically for. So you had this let. He did associate one side of court with the yale law school. He did not associate the other side with a harvard law school. Still lochner has not played a role yet it we have a split on the court between good new deal judges, new deal restraint , or court activist judges. They are fighting amongst themselves, and that brings us to the 1960s and the case of griswold versus connecticut. What does griswold do . He protects the underrated right of privacy to use and to possess and to sell contraceptives. The question is what gave the court the power to invalidate a connecticut law to possess and use contraceptives . , a gooder douglas gave yell man, the answer Justice Douglas gave was that it was the right of privacy and he relied d on other cases in making that case. At some point, the challenge was raised to him, doesnt this give rise to this economic liberty case like this lochner thing . The court wasnt quite sure what the lochner case was. They thought it had to do with the size of bread. They were not quite sure what the lochner case was. There was a case like that, but it wasnt lochner. Not playedochner has a huge role. Justice douglas as we were not take the road that was urged upon us to do Something Like lochner. Then where it really comes into play is in gerald gunthers casebook. It was published in 1970. Look how recent we are, puts case book and pairs it with griswold as a way of questioning what the court is up to is any different than what it used to do. Of1975 comes the new edition roehers casebook, and versus wade is decided. Now gunther expands the lochner section into a whole ,hapter, starts with lochner goes through griswold, and then through roe versus wade. He called this the lochner era. Before 1970, there was only one reference to anybody even referring to it as the lochner era. The title of the chapter was substantive due process, rise, decline, and revival. So he was doing that. I happened to be a law student 1975. I took constitutional law, so i use the First Edition of gunther , so i read this chapter as a law student and read the whole thing and thought, wow, this is interesting. I really love the lochner case, so maybe that means griswold and roe versus wade are ok too. I think the sociology was backwards. Roe versusople liked wade, and a lot of people like griswold. Itn you put lochner against and say they are doing the same thing, i think this cause people to rethink lochner, and even was stillhner objectionable, or wasnt an objectionable for the same reasons. Judges were interfering with the political process, but now thats not why it is objectionable. When he published the First Edition of his treatise in 1978, he has a whole chapter on lochner. He says the prom with lochner was not that they got the problem with lochner was not that they got it wrong, they were protecting the wrong right. Freedom of contract was not a right they should be protecting. Ok, so now lochner used to be very bad, and now it is only very bad. Here is the last part of my story. I have a lot more to say about was athink lochner reasonable decision. I will close with one personal anecdote. One of my earliest articles on constitutional law was telling the story about how it was thanks to Jerry Gunther and his casebook that lochner started to get a better reputation. You had scholars saying nice , sayingbout lochner its not as terrible as it used to be, and so i credited gunther with having elevated the stature of lochner. That is why people started thinking better of it. I got a hand written note, which in forgery i cannot find, so you would have to take my word for it. Written note from Jerry Gunther expressing his shock and dismay that his casebook could possibly have the effect i described, because his whole purpose of putting these together was to undermine roe versus wade and griswold, the opposite of what he wanted to do, elevate lochner, but it may have been a case of unintended consequences. So lochner has gone from being very, very bad to being only bad. We will discuss whether that is a justified treatment of lochner. Thank you. [applause] that was an incredible course in constitutional law. I have spent a little time myself with the period, and i want to press you both. When youfeeling that go back into 1905 and look at the concept of rights, that it looks so much different. We did not have the idea of substantive due process. I think you would both agree with that. When i looked at the average case, ive found dozens and dozens of statements like this that challenge the contemporary equation of lochner with the notion of rights that might the in more contemporary cases as suggested by gunther, so we are comparing apples and oranges. Willis one quote, which seem strange to the audience. Then i will let them both respond. This is a case no one has ever heard of that involves a dam, but says the police power which was the core concept of constitutional law at the time is an exercise of the sovereign toht of the government protect the lives, health, comfort, and general welfare of the people, and is paramount to any rights under contracts between individuals. A strong contract right in 1905 . Is it correct to compare that strong right with strong rights that we have seen postnew deal . That first. Swer part of my answer will be a response to randy because it falls right into that area. Randy is very convincing about lochner being unimportant and its time and being a favorable his description glosses over some key things. These are the rights. Before i get to the rights, let me point out that the bake shop, the reason that only one provision of the bake shop act was cited by the court was because that is the only part of the bake shop act that was before the court. Lochner was convicted of a crime, for violating the longer hours versus shorter hours provision of the bake shop act, but the part that randy glosses over has to do with rights. The police power is not defined anywhere in the constitution. In fact, the police power i would say is not defined anywhere. If you look at the old constitutional treatises, they would say the Police Powers are all the power reserved to the states. It is not defined. What randy glosses over is he keeps talking about health and safety. The police power goes beyond health and safety. As victory has pointed out, it goes towards protecting, you say the right of the government, but i would say the duty of the government to protect the general welfare. One thing is that we have glossed over the notion of glees power. The second thing randy glosses over in his description is the burden of proof, or what he would call the presumption. That resumption up to lochner and including lochner, because one judge who dissented was strongly in favor of the legislation and strongly in favor of the state. It,dissent in lochner put the statute cannot be overruled unless it is plainly and probably beyond all question palpably beyond all question, and for that reason he would not have overruled the shorter hours provision of the bake shop act, so i think these two concepts fit right into your story. Backwards, one of the differences between randy and i is that i am always looking backwards, where he is always looking forwards about this case. If you look backwards, that notion of police power were stronger than the time between and west coast hotel versus parish. Where wes an area agree quite a bit. One of the reasons why lochner has been misinterpreted, and i dont think ill does this, is by reading back into lochner what is the way we do substantive due process today. The way it is done today is you basically have essentially an assumption, which only does not apply if you have with the court identifies as a fundamental right, so if you do have a fundamental right, of which there are only a limited number, then it gets super dupe superduperon protection. Either have no protection of liberty or you have great protection of liberty, so you have to keep the number of liberties to be protected relatively small, because of you dont, it will over well government. That is the way substantive due process is done now. You would look back and say what they did is they just elevated freedom of contract to the status of fundamental rights like we would do to privacy today, and they were wrong to do so, but that is not with a did. What paul said they would did. They did. Not much time was ever spent identifying the right, justifying the right, like we do today, that premium is placed on the exercise of police power. It is what is the appropriate scope of police power that is at issue. Paul is right. Scopes of ther police power and broader scopes of the police power, and that arrower scopes of the police power and broader scopes of the police power. The unenumerated police power, which by the way is unenumerated power, policy right. It is not mentioned in the comets paul is right. It is not mentioned in the constitution. The question is, what is the proper scope of this unenumerated power . One of we can rule out the answers to that question, and that is police power is unlimited. It is anything. It is everything. Majority ander a the legislature decides to do within the proper scope of the police power. I think that would be a very ahistorical view of police power. We cannot adjudicate now at least at this moment would exactly what the proper contours of the police power is, other than i am freely admitting it was contested as to what the proper scope of it is, but i cannot identify the standard used in lochner. The standard is the police power cannot be used to an act in a rational or arbitrary restriction. That was the historic standard. Irrational and arbitrary. Irrational is when liberty is being restricted to pursuit some particular in, but the fit between the purpose and the , iss, the end and the means so loose that we suspect perhaps that is not the reason why the law is being passed, without going into the motives directly, we can expect bad motives might not relate that do to the public good, the good of the general public, but might actually be trying to help out some at the expense of others, which was not thought to be in the police power of the state. Taking from one to another is outside the Police Powers of the state. The other standard is arbitrariness. It was treating some people differently than others without a good reason. That would prohibit a certain kind of discriminatory treatment , and the question in facing lochner without getting to what the answer was, it was conceivable that lochner was butg, i dont concede that, one could concede that i still say this was irrational law because the fit between the work andt bakers Public Health and safety was not there, particular he as applied to other occupations where people work long hours which were also hazardous, so there was not enough it between means ends so it could be criticized as irrational and arbitrary. Get this treatment and others dont get this treatment . Is opinion in the lochner about rationality and arbitrariness. Standard,e historic the outer boundaries of the police power. Why would that be the outer boundaries of the police power . Thewould that be one of outer boundaries of the police power . Acause we supposedly live in country where there is the consent of the governed, and yet they can claim the consent of the govern only tacitly because there is never any express consent, and so the question is, can the individual citizen who has rights, preexisting rights that we can talk about shortly, be presumed to have given to the legislature, a majority and the legislature, which is just a body of individual citizens, the power to restrict their liberties arbitrarily and irrationally . The argument is that cannot be presumed. Maybe somebody could consent to it if you asked them to, although i think paul would think that contract is unconscionable, but they certainly cant be presumed, so no one can be presumed to consent to legislature the power to restrict their liberties arbitrarily or irrationally, so was this such a law . That is what the court decided. That as i understand it is not the position of liberty of contracts, which is the traditional story told. Generallystorians agree that the police power had a prominent effect as scholars have been suggesting, but one of the things i want to ask you both while i have you is whether there is in a third way between a strong liberty of contract ofw and a view that in fact no regulation of business. They did regulate business. A smallerhere is explanation, and that might be there was labor exceptionalism, which is just a labor and 1905 was associated with socialism, terrorism, violence, and it was this labor exceptionalism that was so crucial to the future of the new deal. Our, the future can make ar ideas of cases different, but the real key here was something smaller. It was not large ideas of of largef contract ideas no economic legislation, but rather labor was singled out in this decision for does favorable treatment, as it was in so many other ways when we put labor leaders in jail because of their use of speech. I like that idea. Ofppreciate this notion labor exceptionalism, but see a couple of problems with it. The first problem is that if there was labor exceptionalism, it did not show in his new york legislature. This was a legislature that was very businessoriented, and yet andstatute that was enacted voted in the two houses of the notslature, 120zero, and only did about 120zero, but did it twice because the original provision, no a person could work in a bakery for more than 10 hours. The governors lawyer was worried that that was unconstitutional and changed it it went backe, and to the legislature and was voted again. 11 of the 21 judges who voted on lochner, voted in favor of the legislation if you take all the near judges that voted on lochner, so only one judge made this decision, and that was one of the complaints against lochner. I want to say a couple of thing, one is about lisa power. There was an outer limit to please power before lochner. It comes out of the old cases thatving businesses received charters and grants and special privileges from the government. What it said is that the police power was extensive, but not unlimited. , the statemit was could not deprive a corporation of its property. It could not confiscate its property or deprive the corporation of the essential objects. That was a real subtle change after the enactment of the 14th amendment, and will come in the granger cases, both contract aseuse and another c that involved a partnership. What these lawyers from these business entities tried to do is that they tried to argue that , wasation equaled confiscation. That indie interference with the businesss ability to do what they want with their property constituted confiscation. That was the old limit on police power, and it was consciously change. I am working on a book, and i have also finished a book on another case, and i have tracked this change. ,t did not happen immediately but it was a conscious change on the part of a series of lawyers. It was not a conspiracy or organize, but it was conscious, an effort to change this idea of what limited police power was from confiscation to regulation equals confiscation. The thing i do think you are right about, victoria, i have thought about this since you mentioned it earlier, when i read all the arguments about these cases on the slaughterhouse cases to lochner and beyond, i do see the limited police power with the words communism or the words so i think there is something to that if you read the old cases, but i do not think it was generally manifested everywhere. I think it was unique i should not say this because i dont know it but it seems it was unique to the judiciary. With respect to arbitrary and irrational am a one of the things is that a court can be arbitrary and irrational too, could argue that lochner was arbitrary and irrational. It was a rational because it was unique. It changed the way we looked at businesses. If you are living in the day, you would have predicted that the attorneys challenging lochner would have lost, so you have two keep in mind that every branch of government has that same potential. Randy . Then we will have two minutes. I would be remiss if i did not recommend two books for people to read who are interested in the lochner case. The first book is lochner v. New york, economic regulations on trial who is written by my copanelists here. He signed it over to me. I appreciate that could the second book i would recommend is by bernstein of george mason law school, defending individual rights against progressive reform. If you read this book, you will get a somewhat different take on the facts of what was happening trade then youp have heard so far. For one thing, you have not heard anything about the difference between the large bakery companies, who actually were not necessarily working their workers longer hours. They could be shift workers, for example, because they had enough workers around the clock. If you have many, many employees, it is easier to work them in shifts to handle that. If you have a solo bake shop, then it is harder to do that. Employees have to stay longer and sleep nearby so they can get up and tend the ovens. At the time it was consciously and publicly note to be aimed at a particular subset of the bake shop industry, those in the tenements run by the ad tieins italians and jews, so this wasnt and the group that lobbied in favor of this bigwas not so much the banking companies, although they did not object to it. There was a reason why tammany hall did not object to this law. There was a reason why businesses did not object to this law, because they were not harmed by this law. The people harmed were a small set of people accused of having filthy and horrible conditions, which would have been addressed in some of them put out a business by the regulations not challenge, but they were the ones at home this law was aimed. Getting back to victorias point about labor, it is labor unions. That is what you meant to say. Labor sounds like everybody. Its not. Its labor unions. They did not represent women, white, male dominated unions, and that is who the progressive strongly supported, and that was who promoted this particular legislation, and so at that time there was skepticism about unions. There was skepticism by africanamericans about unions because they were so dominated by white males, and there was skepticism by businesses. On whichitutional hook this skepticism was granted was that it wasnt within the police power to favor some subset of the population over others. Interest law, a law for the common good, had to be about everybody. If you just had a law that favored this group, which is like one half of a contractual deal, which is the labor unions, over this group, which is management of capital, that by it self is an improper use of the police power because it is siding with e over the other, and the release powers were for everybodys benefit. That this concept of the police power, this limited concept of the police power, on one hand it was very prevalent, then it came under challenge. It came under challenge under the theory that everybody has benefited from helping labor out because of conditions, there is a whole long story we can tell about we are all better off because there are labor unions, and that was how they brought this distinction under the police power jurisprudence into question, but the original idea and question was it is not the proper role of the legislature to side with one side of the dispute over another side. That would make this an arbitrary law. This was the other motives that that might court have accounted for the law being lack of fitn the with health and safety and there was no reason to single the bakers as opposed to other workers who worked in bad conditions. Othermight suspect motives, and the other motives he had in mind were siding with labor, unions over capital or management, and that was something to think by some beyond the police power. With respect to the law itself and the passage of the law, the entity or the group that provided the cloud, labor unions in 1895 had no power whatsoever. They were small, dysfunctional. Three york, they were separate groups. They did not even have a lobbyist in albany. The group that provided the cloud was mainstream reformers, people who were actually an elite, primarily in new york city and primarily concerned with things like cleaning up cleaning upcla tammany hall, cleaning up the slums, ameliorating the condition of People Living in outs, and what i found reading their statements was that they were concerned about the two extremes that were being created in American Government, and this fits again with your position, victoria. That extremeried on the right and left would actually cause turmoil that would break down American Government. That the only way to solve the problems of American Government was to find some middle reform. I appreciate very much randy mentioning my book, and along with david bernsteins book, which i think is a good book, but i have two things to pitch for myself about that. I think if you read those two books, you are to read my review of bernstein, because it is a little unfair. He wrote his book 20 years after mine, so i had a shot back at him in a review. The other thing if you were really interested in that subject, i ought to 10 you that the book you will see in the gift store is part of a series that does not allow footnotes, but i also wrote that book as a hardback book, and all the footnotes are in the hardback book if you want to trace my research. Is there anything else you would like to say . We are going over a little bit. Does paul get another closing . Lets start with you. Ok, great. Thank you very much again. There is lots of mythology about the lochner court. We did not get into the mythology that comes about as a result of Justice Holmes is saying the law does not an act mr. Herbert spencers status. Any have associated this with combination of social dogmatism. Spencer was not a social darwinist of any time. He did believe in evolution, but not social darwinism. It was a famous book that argued for equal freedom, everybody should be free to do what they will provided their freedom does not infringe on the equal freedoms of other people. Actually i just brought along my copy of social statics here. It has a whole chapter on the rights of women and children. And 1845 was way ahead of his time when it came to advocating for those sorts of rights. This idea of the law of equal freedom inherently brings up the subject of reasonable rate regulation reasonable regulation. In fact, everybody should be free to do as they like it it does as long as it does not impinge on the freedoms of other people. Of contracts, the entire body of contract law is a regulation on the making of contracts, what constitutes a contract, when can they be made, and fours, defenses to them, and entire regulation of contracts that goes back many years, centuries perhaps, and something libertarians did not object to. So the issue is not whether you can regulate the issue is whether the regulation of liberty is reasonable, and that is not an easy question to answer, and maybe the lochner answered it wrongly. I dont think they did. I dont think the question they were asking was the wrong question to ask. I think we would be better off to identify which liberties we have our fundamental, and they get superduper production, and those they dont think a fundamental get no protection at all. Thanuld do a lot worse following the prenew deal approach to Police Powers, which is saying liberty may be regulated for the common good, but now you need to come up with a theory of what that means, and then you need to hold legislatures within their proper powers. The declaration of independence says we are each endowed with unalienable lights rights to life, liberty, and the pursuit of happiness come and it is to thate these rights governments are instituted among men, deriving their just powers, not unlimited power, but their just powers from the consent of the governed, and that is what case is about, what is the just scope of the power the government has to regulate our liberties so as to protect the liberties of each and every one of us. Thank you. [applause] thank you both for a wonderful discussion. [applause] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] [captions Copyright National cable satellite corp. 2016] thank you. That was great. That was fabulous. Thank you very much. [applause] starting monday, august 1, at 8 00 p. M. Eastern time, the contenders, cspans 14 part 2016s which helps put the president ial campaign in historical perspective. Time, political parties, and geography, the contenders presents key figures who have run for president and lost, but change political history. Each night we feature a different candidate, beginning withhenry clay and ending ross perot at 8 00 p. M. Eastern time, august 1, through the 14th, here on American History tv, only on cspan3. This weekend on the talkdency, historians about the process of writing a president ial biography. Here is a preview. You do a biography because you have new information or feel you can do a fresh portrait of the person. I had this up tiffany when i was working on hamilton when washingtons was aide to camp a big feud with washington and realized he had to justify this decision to quit ,ashington to his fatherinlaw who is a close friend of washington. He sat down and wrote a letter to his fatherinlaw and said, the great man and i have come to an open rusher, he shell for once at least repent of his ill humor. I remember that line, he shall for once at least repent his illhumor kept reverberating in my mind. Suddenly, hamilton is giving me this sense of this volatile powder keg. Penlton tended to perceptive portraits of people. He had been working with washington every day for several years at that time, and so i thought to myself, washington seemingly the most familiar person in our history, could it be that he was the most unfamiliar and some way, and that was my opening wedge. It pried open for me a whole was intense and volatile. He was this man of marble, and he was not at all. Watch the entire Program Sunday at 8 00 and the cspan buses in philadelphia, pennsylvania this week. They are talking to the Democratic National convention and the issues most important to them. Hello, i am a superdelegate for Hillary Clinton the great state of ohio. Yes me a pleasure and honor to be part of this historic moment. My most convention was in 2006, 2d had an opportunity in 2008 nominate the first africanamerican president. I am again excited to nominate the first woman president. Hi, im a delegate from the San Fernando Valley in los angeles, california. Im supporting hillary. I could not be more excited. I really care about womens issues and middle east politics, and i know she is the most qualified candidate. I cannot be more excited. The most important issue for me in this election is the Supreme Court. Last forme court can 10, 20, 30 years. It will shape our policies for the next generation. Hello, i am a district delegate for fresno, california. Experience has been eyeopening. I feel like im witnessing the death of democracy. I do not feel included. I do not feel like my voice is heard. And very concerned for the future of my country for my daughters and granddaughters. The revolution continues. Hi, i am from orange county, california, and im having a great time as a delegate. Im here because my grandmother, my mother, wife and daughter. Is sixy grandbaby, who months old. It is so important to break the glass ceiling. Voices from the road, on cspan. Each week, American History tvs real america brings you archival films that provide context for todays Public Affairs issues. Up next, shooting for survival, a 1975 fbi Police Training film. This 15 minute film uses dramatizations and scenes recorded at a shooting range to show proper use of firearms by law enforcement. Hey, i have been robbed. He went that way. The kid with a gun. This is radio to 27, i have a robbery that jusoc