9/23/2023 0 Comments Chicago lockdown address![]() ![]() From the late 1940s on, it seemed increasingly unlikely that the United States would go the way of Eastern Europe, embracing economic doctrines that fundamentally reified the power of the state over the individual. But another view would suggest that the Court believed basic economic rights to be largely safe from legislative encroachment. ![]() One explanation for this trajectory could simply be a deeper social understanding of what is important in life. The overarching story of substantive due process in the twentieth century was the rejection of economic rights as fundamental, followed by a recognition of unenumerated rights largely in the area of reproduction and sexuality. At a time when state police power has imposed unprecedented limitations on individuals’ ability to provide for themselves in dignity, Lochner should be brought out of lockdown. The latter’s broad deference to public health authority lived side-by-side with a broader conception of individual liberty. Yet to address the broad restrictions on liberty caused by current and foreseeable pandemic responses, it is worth noting that the Lochner Court is the Jacobson Court and that the cases were decided within months of each other. The other upheld a substantive due process claim-and was thrown in the dustbin of constitutional history, known now only as part of the “anticanon.” 3 The first denied a substantive due process claim and has become the legal bedrock of all judicial examinations of public health measures ever since (and is the go-to citation of contemporary COVID-19 cases). In 1905, the Supreme Court rendered two landmark decisions on the scope of individual liberty- Jacobson v. ![]()
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