Legal Commentary

Ronald Dworkin has an interesting review of Cass Sunstein's most recent book in the April 30, 2009 edition of the New York Review of Books.  The Sunstein book is called "A Constitution of Many Minds."  Prof. Dworkin's review contains a typical criticism of Prof. Sunstein's minimalism theory.  What surprised me was Prof. Dworkin's take on Lochner.  Dworkin points out that Sunstein has long criticized Lochner's majority opinion for finding a right to contract and therefore for not being minimalist.  Dworkin then turns the tables and argues that the majority Peckham opinion was actually "shallow" in many respects (not precisely defining the police power, not precisely explaining his notion of liberty) whereas "Holmes's and Harlan's dissenting opinions on the contrary, were theoretically more ambitious.  Harlan laid down a general political theory about the proper distribution of power between legislature and courts..."  The review is a good short read but I find this argument a bit perplexing.  When the Court is most deferential to the legislative body, isn't that usually the key notion of minimalism?  And aren't the dissents there the deferential opinions?  I realize there has been lots of interesting "revisionist" scholarship on Lochner in recent years but I don't agree with this assessment.