Difference Between Lochner and Griswold/Roe Forum

[Br3v]

Someone care to explain the difference between what the Court was doing in Lochner and what the Court was doing in Griswold and why the latter is okay but the former not? They are both using substantive due process.

Probably futile to say it but I will anyways, not looking for politics.

[bk1]

Here's that section of my outline from a few years ago:

d. Is Griswold distinguishable from Lochner?
i. Source of unenumerated rights?
1. Conventional morality.
2. Philosophical theories of rights.
3. International law (Roper v. Simmons – justices look at foreign laws when deciding on juvenile death penalty).

[Nelson]

Lochner court viewed freedom of contract as a fundamental right. The current set of fundamental rights is different.

[Br3v]

thanks!

[WhiskeynCoke]

Also, the Lochner court was full of Laissez Faire social conservatives. Basically if it was about the economy, back the fuck off legislature, thats a fundamental right and you're overreaching. But if it was about "morals" (i.e. keeping women in "their place.") go for it gov (Muller, Radice, etc.). Jesus, Con Law is so fucking stupid.......

[Monochromatic Oeuvre]

SDP is not necessarily a problem per se (see e.g. Lawrence), but is only used to protect the sphere of "fundamental rights"--basically, sex, family and education, AFAIK. Quintessentially activities of a "human" sort rather than economic.

[Br3v]

I mean, in real life it's the exact same thing --> Court making up rights. I was just looking to see if the academy had like a canned answer to justify if.

[ph14]

I agree with what everyone else has said so far. And to supplement, you can think about these decisions in the context in which they occurred. Look at at the prominent social movements, economic issues of the day, etc.

When did the Court turn its back on Lochner? During the great depression if I'm recalling correctly. Similarly, Roe came down during a wave of the women's rights movements where women were winning abortion rights on a state by state basis at a fast pace.

That's the real difference. Justices aren't immune from the society they live in. My con law class talked about that a lot but it wasn't super doctrinal.

[FattyMcFatFat]

If you're "not looking for politics," then you're not looking for the answer, because politics is the fucking answer.