Vol. 21 No. 7 (July, 2011) pp.424-425
A Reply to Professor
George W. Liebmann’s
Review of REHABILITATING LOCHNER: DEFENDING INDIVIDUAL RIGHTS AGAINST
PROGRESSIVE REFORM, by David E.
Bernstein.
Author’s reply: David E. Bernstein, Foundation Professor,
(Editor’s note: The following is a comment on a recently published review. LPBR
welcomes such comments and invites submissions to the editor.)
I am writing in response to George W. Liebmann’s review of my book,
REHABILITATING LOCHNER: DEFENDING INDIVIDUAL RIGHTS AGAINST PROGRESSIVE REFORM,
that appeared in Volume 21, No. 7 of LPBR.
To borrow a phrase from Liebmann, his review is not without its merits. But I
feel moved to respond for several reasons.
First, Liebmann begins his review by claiming that the book is “essentially a
brief for ‘conservative’ judicial activism,” and he later advises that I
implicitly call for a “return to economic due process.” This is incorrect.
Rehabilitating
Lochner is a work of history.
It concludes that LOCHNER v.
But the book draws no normative conclusions about current constitutional
practice and indeed explicitly disclaims such conclusions.
As I write on page six of the book, “even the soundest history cannot
provide a theory of constitutional interpretation, nor can it dictate one’s
understanding of the proper role of the judiciary in the American constitutional
system.” The history I present,
therefore, is inherently agnostic on whether LOCHNER or any other case discussed
in the book was correctly decided, much less on the proper outcome of broad
contemporary debates about “judicial activism.” Liebmann should have reviewed
the book that was actually written, not the strawman-of-a-book that he proceeds
to knock down.
Second, Liebmann engages in a gratuitous and unfair attack on two of the book’s
blurbers,
Finally, Liebmann’s review displays, at best, a very sloppy reading of the text.
For example, he claims several times that I posit that Justice Oliver
Wendell Holmes, Jr., was influenced by German positivism.
That assertion does not appear in the book.
Liebmann also writes that I “frequently invoke[] the natural law tradition.”
He then spends a paragraph chastising me for not discussing the views of
natural law scholars like Aquinas. Actually, I frequently invoke the natural
rights tradition associated with, for
example, John Locke, Thomas Jefferson, and many antebellum abolitionists.
I don’t know whether Liebmann doesn’t understand the distinction between
natural rights and natural law, or if he was simply too careless to notice his
error. Either way, it doesn’t
exactly lend credibility to his review.
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© Copyright 2011 by the author, David E. Bernstein.