Before I get into the substance of this post, I want to point out that a week ago I compared 2011 to 1989 and 1848 and said that Libya might be next. Behold the power of this blog a week later! (I’m kidding, of course, but it shows you that many of these Arab dictatorships have a glass jaw. You wonder how long Saudi Arabia can resist the tide.)
Professor David Bernstein of George Mason Law School (and the Volokh Conspiracy) is coming to IU–Indianapolis tomorrow to discuss his new book on Lochner. It’s a terrific read and very convincing. What really struck me was his point that the so-called legal realists of the early twentieth century were completely unwilling to probe how legislatures worked. Their deference to statutes reflected a highly formalist view of democracy, especially in an era where state legislatures were malapportioned and rife with corruption. Now of course that was because they liked a lot of what these legislatures were doing, but even in cases when they did not there was no effort made to get behind the stated reasons for the law. It was a curious blind spot that plagued powerful minds such as Learned Hand, Oliver Wendell Holmes, and Felix Frankfurter.