Legal Commentary

Alan Meese and Nate Oman Take on Noah Feldman

By David Bernstein

and his call for a new progressive constitutionalism, modeled on the old, New Deal-style progressive constitutionalism. I agree wholeheartedly with Meese and Oman. One additional point: Feldman, like other modern liberal writers who yearn for the Progressive days of yore, whitewashes Progressivism, so that it consisted solely of public-spirited regulation of corporations and the labor market. Meese and Oman note that the regulations in question weren?t always so public-spirited, but I?d add that Progressive regulation also included alcohol prohibition, coercive eugenics, housing segregation laws, bans on public schools, and other measures that people today across the political spectrum would agree were gross violations of individual rights. Resistance to these measures came primarily from the libertarian constitutionalists Feldman decries, not from his Progressive heroes. With that context, and in stark contrast to the way Feldman portrays things, the idea that property rights and limited government were a bulwark of individual liberty doesn?t seem quite so bizarre. 

Coincidentally, just before Feldman?s piece appeared in the Times, I decided on the full title for my forthcoming book? ?Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform.?

Full post as published by The Volokh Conspiracy on July 05, 2010 (boomark / email).