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					                Lochner Dissent


Great Dissent

  (Holmes is known as the great dissenter)
  This is what he says in dissent …
Holmes Dissent               Freedom of Contract is an
                                Economic Ideology
Holmes –

“This case is decided upon an economic theory which a large
part of the country does not entertain. If it were a question
whether I agreed with that theory I should desire to study it
further and long before making up my mind. … But a
constitution is not intended to embody a particular economic
        whether of paternalism ... laissez faire. It It is made
theory, whether of paternalism oror ... laissez faire. is made for
for people of fundamentally differing views, the accident of
people of fundamentally differing views, andand the accident
ourour finding certain opinions natural and familiarnovel and
of finding certain opinions natural and familiar or or novel
eveneven shocking ought to conclude our our judgment upon
and shocking ought not not to conclude judgment upon the
question whether statutes embodying them conflict with the
the question whether statutes embodying them conflict with
Constitution of the United States.
                            The Constitution doesn’t tell us
                                how to play capitalism
Holmes Dissent

Holmes –

“This case is decided upon an economic theory which a large
part of the country does not entertain. If it were a question
whether I agreed with that theory I should desire to study it
further and long before making up my mind. … But a
constitution is not intended to embody a particular economic
theory, whether of paternalism or ... laissez faire. It is made for
                                                        accident
people of fundamentally differing views, and the accident of
our finding certain opinions natural and familiar or novel and
even shocking ought not to conclude our judgment upon the
question whether statutes embodying them conflict with the
Constitution of the United States.
                            A-priorism is not logic, it is the
                                  accident of opinion
Holmes –

“General propositions do not decide concrete cases. The
decision will depend on a judgment or intuition more subtle
than any articulate major premise. … Every opinion tends to
become a law. I think that the word “liberty” in the Fourteenth
Amendment is perverted when it is held to prevent the natural
outcome of a dominant opinion, unless it can be said that a
rational and fair man necessarily would admit that the statute
proposed would infringe fundamental principles as they have
been understood by the traditions of our people and our law. It
does not need research to show that no such sweeping
condemnation can be passed upon the statute before us. A
reasonable man might think it a proper measure on the score of
health. Men whom I certainly could not pronounce
unreasonable would uphold it as a first installment of a general
regulation of the hours of work.
Holmes –     Stop Using the A-priori Decision Format!
“General propositions do not decide concrete cases. The
decision will depend on a judgment or intuition more subtle
than any articulate major premise. … Every opinion tends to
become a law. I think that the word “liberty” in the Fourteenth
Amendment is perverted when it is held to prevent the natural
outcome of a dominant opinion, unless it can be said that a
rational and fair man necessarily would admit that the statute
proposed would infringe fundamental principles as they have
been understood by the traditions of our people and our law. It
does not need research to show that no such sweeping
condemnation can be passed upon the statute before us. A
reasonable man might think it a proper measure on the score of
health. Men whom I certainly could not pronounce
unreasonable would uphold it as a first installment of a general
regulation of the hours of work.
                                                               Time
Holmes –

“General propositions do not decide concrete cases. The
decision will depend on a judgment or intuition more subtle
than any articulate major premise. … Every opinion tends to
become a law. I think that the word “liberty” in the
Fourteenth Amendment is perverted when it is held to prevent
the natural outcome of a dominant opinion, unless it can be
said that a rational and fair man necessarily would admit that
the statute proposed would infringe fundamental principles as
                     Law = Hegemony?
they have been understood by the traditions of our people and
our law. It does not need research to show that no such
                Law = the order of its time
sweeping condemnation can be passed upon the statute before
       Law = The might needs proper day that
us. A reasonable mangreat think it a of the measure on the
score of health. Men whom I certainly could not pronounce
        prevail in a system designed to make
unreasonable would uphold it as a first installment of a general
regulation of the hours victory difficult.
                        of work.

				
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posted:2/6/2011
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