George Will's column, "A ruling's valuable rehabilitation" (Sept. 9), ignored the overwhelming rejection of the position he advocates by conservative jurists -- and by George Will. Will claims that the Supreme Court "correctly decided" Lochner v. New York in 1905. However, the author of the book Will relies on reacted by stressing that "conservative jurists have been, if anything, even more anti-Lochner than their liberal counterparts." Libertarian professor Don Bordeaux pointed out that: "conservatives -- including Chief Justice Roberts and Justice Scalia -- routinely join "progressives" in bashing Lochner. No less a conservative icon than Robert Bork derides Lochner as being "the symbol, indeed the quintessence, of judicial usurpation of power."
Finally, as National Review commentator Matthew J. Franck explains, "This is the same George Will who in 1996 described Lochner as standing for the proposition that "the court can overturn laws it considers unwise." Later the same year, he called Lochner's brand of substantive due process the "tendentious doctrine that many government actions distasteful to judges can be baldly declared to be the results of constitutionally impermissible processes."
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