However, the more serious issue is the contract, property, et all language. As I read the Rosen article, the Constitution in Exile people wished to reverse almost all regulation of business activities. That is precisely the wrong direction to go right now. For the last thirty years, the regulatory process has been undercut by the wrong appointments to regulatory bodies. But, until this Bush administration, the various administrations tried to act as if it wasn't happening. Now, with GWB we have a clear agenda to undermine all regulatory actions from water, to air, to medicines, to the security exchanges. Etc.
That's where the "scary fiction" comes into play, John. Even if such folks could resurrect Lochner, the states could still regulate for health, safety, and the general welfare by showing a compelling safety or health interest, with narrowly tailored means to accomplish that interest. It's not absolute. Just like in Roe v. Wade - the state's interest trumps after viability. What economic substantive due process DOES accomplish, is restricting government regulation to such "compelling" interests. As it stands now, and I'm sure it's to your liking, the government only has to meet rational basis, which is a "gimme" to the government and almost always validated. The government can practically regulate at will. Unsurprisingly, libertarians are not happy with that state of affairs.
Derek |
