Class Notes (806,720)
United States (312,160)
Boston College (3,489)
POLI 2327 (25)
All (25)
Lecture 17

Complete Lecture 17 Notes

6 Pages
Unlock Document

Boston College
Political Science
POLI 2327

10/31/13 Lecture 17 • Lochner v. NY o Strike down law regulating bakers’ hours, saying it’s not a health and safety law  Raises question o Recent efforts to revive case as a good decision do this by arguing that justice peckam was right  Would have driven small business bakeries out of business • Big bakeries lobbied legislature to pass the law o What happens if the rule is that the judge gets to second-guess what the legislature thought it was doing?  Argument from the descent (Harlan) • Sets up a new test for judicial review that argues for judicial restraint o The court should never strike down a law unless it is absolutely clear it is contrary to the constitution  Cites social science evidence • Brandeis Brief o Substantive due process is a declaration of the court that the law is irrational, discriminatory o Lawyers start to provide evidence to the court that a law is rational by citing social science evidence o Brandeis = Boston Lawyer who believed in women’s protective legislation  When a law was challenged for being unconstitutional and was threatened to be shut down in Oregon, he sent 113 pgs of social science to try to show to the court is that, what the legislature did in passing the law WAS rational and there was evidence for it • Wanted to improve human conditions o Justice Holmes thinks that, in the end, the dominant people will have the power and it is not his position to stand in the way of that • If the numbers are always gonna win in the long run….why bother with judicial review? o Make it EASIER to override judicial review – Teddy Roosevelt  Make it easier to amend the constitution, change article 5 o Others will argue for supermajority requirements  2/3 vote to strike down as unconstitutional o Voters should, by referendum, be able to override court opinion (state courts) o Should be allowed to remove judges from office • Muller v. Oregon o Involves maximum hours law for women o Precedent = Lochner v. NY o Brandeis threw in his brief, relied on the dissent  Court upheld the law this time! This IS a legitimate law • Liberty of contract argument – you have the fundamental right to bargain with your employer about terms of your employment o If government doesn’t allow this, restricting fundamental freedom that caused civil war (slavery – no liberty of contract) • Legal realism vs. legal formalism o Legal formalists rely on abstract principles without regard for what the pragmatic considerations are  Justice Harlan, in dissent of Pickner Lochner, said that liberty of contract = arid formalism, fiction because power relations aren’t legal • Court in Muller say the same thing  women, as women, are not able to barter • Atkins v. Children’s Hospital o DC Minimum wage law for women o Liberty of contract argument that arises under the 5 amendment  District of Columbia uses a different due process clause because it is not a state th • Bowling v. Sharp  same principles of equal protection in 14 amendment are found in due process clause of 5 amendment, so it’s the same in DC th o 5 amendment due process case o Court strikes wage law down as unconstitutional  How could they do this? o Justice Sutherland says that what happened between muller and 1925 is that the 19 amendment to the constitution was ratified, giving women right to vote, meaning women are full citizens and, therefore, women are equal to men in liberty to contract  Can no longer be protected legislation for women • Commerce Clause – federal government is getting involved in moral legislation o Prohibition – takes the constitution seriously in traditional sense because they believed for government to regulate alcohol, they needed an amendment o Morals = police powers reserved to the states  Feder
More Less

Related notes for POLI 2327

Log In


Don't have an account?

Join OneClass

Access over 10 million pages of study
documents for 1.3 million courses.

Sign up

Join to view


By registering, I agree to the Terms and Privacy Policies
Already have an account?
Just a few more details

So we can recommend you notes for your school.

Reset Password

Please enter below the email address you registered with and we will send you a link to reset your password.

Add your courses

Get notes from the top students in your class.