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Very Cool Bumper Sticker:

One of my students has a bumper sticker on her laptop that says: "Vote No on Directive 10-289." It looked like this t-shirt, without the smiley face.

Jim at FSU (mail):
I've read the book and despite my rare talent for remembering obscure trivia, even I consider that to be pretty damn obscure.
2.27.2008 10:05pm
TRE:
What a suckup!
2.27.2008 10:14pm
OrinKerr:
David, it's not too late to have "198 U.S. 45" t-shirts printed up.
2.27.2008 10:17pm
rlb:
Can I pre-order one of the 198 US 45 shirts?
2.27.2008 10:23pm
gattsuru (mail) (www):
Dang, now I want one.
2.27.2008 10:38pm
Stephen Aslett (mail):
For anyone who's interested in a "198 U.S. 45" shirt, I get you two "25 S. Ct. 539" shirts for the same price. They're way more hip. I mean, what self-respecting hardcore libertarian would want the citation to a governmentreporter on his or her shirt?

Stay away from the "49 L. Ed. 937" shirts, though. Those things aren't even worth buying.
2.27.2008 10:47pm
DavidBernstein (mail):
Years ago I thought about getting a 198 U.S. 45 vanity license plate, but I was told that a U. Va. student already claimed it.
2.27.2008 10:50pm
OrinKerr:
David, if you want to order a "198 U.S. 45" t-shirt, order one for me that says "198 U.S. at 75 (Holmes, J., dissenting)".
2.27.2008 10:58pm
rlb:
I wouldn't think they'd let you have a license plate with "US" on it.
2.27.2008 10:59pm
DavidBernstein (mail):
Orin, yuck, at least go for Harlan's dissent, which I actually find reasonably persuasive, not Holmes's collection of vapid aphorisms masquerading as a legal opinion.
2.27.2008 11:04pm
OrinKerr:
David,

I think Holmes's Lochner dissent is terrific. It gracefully makes the essential point that there is a difference between our political views and what the Constitution requires. Of course, I understand you might not like it if you don't see the distinction. ;-)
2.27.2008 11:11pm
Soronel Haetir (mail):
I find myself far more worried about 07-290 than 10-289. I suppose this could change, though the odds seem remote.
2.27.2008 11:41pm
Barry P. (mail):
I wouldn't think they'd let you have a license plate with "US" on it.

I saw the vanity plate "USA AOK" in Montana once.
2.28.2008 12:21am
Sua Tremendita:
Didn't Mr. Buckley support Nixon's version of Directive 10-289 in 1971? R.I.P.
2.28.2008 1:57am
uneducated vc reader (mail):
Okay, could someone fill us non-entities in on the joke?
2.28.2008 6:06am
BT:
When Obama is elected president, I think I will start wearing my "Vote No on Directive 10-289." t-shirt. It's right up his alley.
2.28.2008 6:25am
longwalker (mail):
When I first read "Atlas Shrugged" and came to Directive 10-289, I thought that it was a re-written and updated version of Diocletian's Edict.
2.28.2008 6:52am
MJS (mail) (www):
Except 10-289 was a directive, not an election referendum....

Still, very clever. And a friend wrote to say, we also need shirts that say "Visit Sunny Galt's Gulch!"
2.28.2008 7:41am
Just Dropping By (mail):
Okay, could someone fill us non-entities in on the joke?

"Directive 10-289" is an Atlas Shrugged reference. It was an attempt to freeze the economy in place and prevent further economic decline. The references to 198 U.S. 45, 25 S. Ct. 539, and 49 L. Ed. 937, are the reporter cites for Lochner v. New York, a 1905 case in which the U.S. Supreme Court struck down a "maximum hours" statute.
2.28.2008 8:58am
Sean M:
Comment threads like these are why I love this blog.
2.28.2008 9:39am
titus32:
Uneducated VC reader--don't worry, not having read Atlas Shrugged does not make you "uneducated."
2.28.2008 9:45am
Not John Galt:
And I thought I was a nerd.
2.28.2008 9:49am
Scott Scheule (mail) (www):
I agree with Orin.

1. Lochner reasoning is as suspicious as any other substantive due process case.

2. Holmes' dissent is punchy and powerful.

Though much of Holmes' opinions are vapid aphorisms.

Surely, with David and Orin's exchange, the stage is set for a debate of the Lochner opinion and its various dissents. It will be the first of its kind.
2.28.2008 9:50am
JB:
That directive sounds like what the French monarchy tried during the Black Death, to stabilize the country.
2.28.2008 9:52am
George Lyon (mail):
Personally I always thought that the 14th Amendment to the Constitution did enact Mr. Herbert Spencer's Social Statics.
2.28.2008 10:22am
Scott Scheule (mail) (www):
I take the minority position that the 14th Amendment actually enacted the second act of Oklahoma!. It's a view that obviously has a lot going for it, but has yet to gather much popular support.
2.28.2008 10:41am
Thoughtful (mail):
I think Scott has it backwards. The idea that the 14th Amendment actually enacted the second act of Oklahoma! likely would gather much popular support were it known, yet doesn't have a lot going for it...
2.28.2008 10:46am
FantasiaWHT:
Yeah, Lochner may be as shaky as the rest of SDP, but the fact that it has been overturned gives many of us hope that the other SDP junk will get overturned, too.
2.28.2008 10:52am
Thoughtful (mail):
I'm not surprised, though I find the position hard to explain or justify, that Orin thinks the dissenters in Lochner wanted to establish their own policy preferences whereas the majority in Lochner did not.

If Orin's interested, I think there are still some "Mr. Thompson for President" T-shirts available...
2.28.2008 10:52am
Constitutional Crisis (mail):
Thoughtful: I think you should give some more thought to Orin's comment.

Also, am I the only one who thinks that uncritical reverence for Ayn Rand is roughly akin to uncritical reverence for Noam Chomsky?
2.28.2008 11:00am
Scott Scheule (mail) (www):
Seeing Rand's name paird with Chomsky's of course reminds me of the Ten Worst Christmas Specials of All Time.
2.28.2008 11:13am
Orielbean (mail):
good link Scott. "Anti-life" indeed.
2.28.2008 11:41am
DangerMouse:
Lochner may be as shaky as the rest of SDP, but the fact that it has been overturned gives many of us hope that the other SDP junk will get overturned, too.

Don't bet on it. Abortion will never be overturned. The culture of death has too much of a hold on this country. Murdering babies will soon be considered an afterthought to one's sexual pleasure.
2.28.2008 11:42am
Justin (mail):
Yes BT, Obama is a communist. ::sigh:;
2.28.2008 11:47am
Anderson (mail):
Murdering babies will soon be considered an afterthought to one's sexual pleasure.

I consider it foreplay, myself.
2.28.2008 11:53am
Constitutional Crisis (mail):

I consider it foreplay, myself.
I generally refrain from comments like "I just spit coffee on my screen," but I just spit coffee on my screen.
2.28.2008 12:03pm
rlb:
"I consider [killing Jews] foreplay, myself."

That's what it sounds like to me.
2.28.2008 12:10pm
Happylee (mail):
First, the fact that a gurl would have such a sticker on her laptop reminds me to kick myself for not going to GMULAW. My pinkofascist skool had Che and other anti-life scum pictured and quoted everywhere.

Second, the comment


Uneducated VC reader--don't worry, not having read Atlas Shrugged does not make you "uneducated."


moves me to say, nay, bro, if "educated" means anything, it should include the reading of Rand, especially if you are an American. I think it's fair to say roughly 60% of libertarians came in through her. The rest came in through a mix of Friedman, Hayeck, Mises, Rothbard, etc.
2.28.2008 12:23pm
DangerMouse:
I consider it foreplay, myself.

That was actually pretty funny.
2.28.2008 12:28pm
OrinKerr:
I'm not surprised, though I find the position hard to explain or justify, that Orin thinks the dissenters in Lochner wanted to establish their own policy preferences whereas the majority in Lochner did not.

That's backwards, "Thoughtful." Let me know if you have any other question.
2.28.2008 12:30pm
DiverDan (mail):

I think it's fair to say roughly 60% of libertarians came in through her. The rest came in through a mix of Friedman, Hayeck, Mises, Rothbard, etc.


Rand was interesting reading, but I only made it through Anthem before I read John Stuart Mill's "On Liberty", and I have to credit that work with leading me to libertarianism. I didn't discover Friedman, Hayek, or Mises until later on in my college economics career.
2.28.2008 12:46pm
Kevin P. (mail):
I was startled to find the remarkable resemblance between Directive 10-289 and the National Recovery Administration.
2.28.2008 1:27pm
guy in the veal calf office (mail) (www):
if "educated" means anything, it should include the reading of Rand

That's like saying you know nothing of history until you read Barbara Tuchman and James Michener.
2.28.2008 2:58pm
titus32:
gitvca, I agree (although I liked Guns of August). Considering all the books deserving to be read before Rand, I'm afraid no one would qualify as educated under Happylee's standard.
2.28.2008 3:09pm
Zywicki (mail):
David:
Yep, I remember when I was in law school someone had the 198 U.S. 45 license plate. Can't remember who though.
2.28.2008 3:37pm
guy in the veal calf office (mail) (www):
titus32: I also liked Guns of August, and Distant Mirror, when I read them. But then I read Froissart's Chronicles or the various books about the Schlieffen Plan and Tuchman's books resemble juvenile comic book adaptions.

Any Rand is a cheap comic book knock-off of better stuff, like Nietszche.
2.28.2008 7:32pm
Truth Seeker:
Any Rand is a cheap comic book knock-off of better stuff, like Nietszche.

Someone needs to do the cheap comic book knock-offs of Ayn Rand. Leave the speeches out so the kids can stay through the end.
2.28.2008 7:50pm
Thales (mail) (www):
I thought the 14th Amendment enacted Duck Soup by the Marx Brothers . . . or was it Kapital by the other Marx . . . I've forgotten, the original public meaning is so difficult to discern.
2.28.2008 11:37pm
walter:
The sticker can be found at the John Galt Gifts website.
2.28.2008 11:38pm
Thoughtful (mail):
Orin Kerr: You are correct. I recall now that Lochner is hated because the majority at the time supported freedom of contract, which is now recognized as obviously incorrect. I guess my reading all those comments over the years about what a "correct" Lochner verdict should have been made me temporarily forget the actual Court of the time did not vote that way.

My more general point, however, is slightly deeper:

You have two groups, it doesn't really matter who is the minority or majority. One supports "untrammeled" freedom of contract. The other opposes it in favor of not upholding mutually agreed upon contracts if "contrary to public policy" or by use of the police power to regulate business conditions, or some other novel consideration.

I could understand if you felt both sides are simply pushing to interpret the Constitution per their favored policy considerations. But if I read you correctly, you don't.

Instead you apparently think that Holmes, a government employee who sought to read the Constitution in such a way as to increase the power of government, was acting purely on legal principle, while the Lochner majority, which agreed adults are capable of looking after their own interests without government oversight, clearly had political motives. Again, I'd say the natural assumption would be the exact opposite.

We generally think it is evidence people are principled if they act against interest. What provides more power to a Supreme Court justice: a decision saying that the government, including the Supreme Court, will in future be more heavily involved in all employment contracts, or a decision that says the government isn't needed in that arena? I'm asking you this from the prospective of logic, not based on your policy preferences.

So, while I thank you for correcting my blunder of inverting the positions of the words "dissent" and "majority" in my original post, the "original intent" of my question stands, awaiting your thoughtful response.
2.29.2008 1:30am
Thoughtful (mail):
"perspective" of logic, not "prospective". Sorry.
2.29.2008 1:39am
Scott Scheule (mail) (www):
Thoughtful:


We generally think it is evidence people are principled if they act against interest. What provides more power to a Supreme Court justice: a decision saying that the government, including the Supreme Court, will in future be more heavily involved in all employment contracts, or a decision that says the government isn't needed in that arena? I'm asking you this from the prospective of logic, not based on your policy preferences.


This rings false. Holmes's basic philosophy was to defer to the other branches except when the error was obvious. That obviously does increase their power--but to fold the Supreme Court in with the others is too much. Holmes's opinion was in the spirit of reducing the Court's power--the majority opinion, on the other hand, took upon itself the role of interference with state laws.

You can argue that Holmes's dissent was pro-government--I won't dispute it--but to call it pro-SCOTUS is implausible.

Your characterization of Holmes's as being political as the majority is also strained--though, I think, more credible. But defenses of the Lochner majority, need to be, at the very least, quite creative. A natural right to contract must be found somewhere, and no such right is explicitly mentioned in the Constitution.

Those defenses may succeed, but nonetheless, at first blush Holmes certainly does appear to be the least political and the most constrained by the law.

Plus--Holmes afficionados can help me out--weren't Holmes's political leanings pretty conservative all in all?
2.29.2008 1:43am
OrinKerr:
Thoughtful writes:
One supports "untrammeled" freedom of contract. The other opposes it in favor of not upholding mutually agreed upon contracts if "contrary to public policy" or by use of the police power to regulate business conditions, or some other novel consideration.
Thoughtful, this is just completely false. Both sides supported freedom of contract as a policy matter. Just read Holmes's chapter in The Common Law about contracts. The question was whether courts should interfere and not let states define what contacts were allowed or alternatively, whether the federal government in Washington DC should intervene and themselves set the terms of what contracts the states would allow.

Perhaps the problem is that you appear to think that there is one "government" in the United States. It turns out that is not the case: there is a limited federal government and then states with broad police powers. The two governments are distinct, a principle generally known as federalism. You see, Holmes was an employee of the federal government, and the question was whether the federal courts should take power to set contract policy away from the states. Holmes's view was that the states could do whatever they wanted, and that the federal courts shouldn't interfere. I don't see how giving the power to the states instead of federalizing contract law was actually a decision that gave power to the federal government. Can you explain that one?
2.29.2008 2:10am
richard gould-saltman (mail):
Truth Seeker: See "Action Philosophers! Giant Size Thing Vol. 1" (Van Lente/Dunlavey), which includes not only Rand and Nietzsche, but Plato, Augustine, Freud and Jung as well.

The bumper-sticker? Sounds like the 21st century libertarian version of "Frodo lives!"
2.29.2008 2:50am
Anderson (mail):
But then I read Froissart's Chronicles or the various books about the Schlieffen Plan and Tuchman's books resemble juvenile comic book adaptions.

Tuchman is undoubtedly a popularizer and synthesizer. For those of us who haven't the time to sift through Froissart &figure out what's true and what's contradicted by better evidence, Tuchman is fine.

As for The Guns of August, I was indeed a kid when I read it, and it was a very important book for me. There are better military accounts of August 1914, but my takeaway from Tuchman was that the top generals on both sides -- the people whom everyone trusted with their countries' destinies -- were frequently incompetent, clueless, or cluelessly incompetent.

Hence a great deal of my skepticism about our leaders today. Sending the French Army off with maps of Germany, but not of France, is such an Iraq-War thing to do. (Okay, I think the map bit is actually from the 1870 war, but you get the picture. Not that the French necessarily learned from experience, any more than we did from Vietnam.)
2.29.2008 9:02am
Thief (mail) (www):
I was startled to find the remarkable resemblance between Directive 10-289 and the National Recovery Administration.

Wickard v. Filburn, anyone?
2.29.2008 4:02pm
markm (mail):

I was startled to find the remarkable resemblance between Directive 10-289 and the National Recovery Administration.

And I'm sure Ayn Rand was aware of that...
2.29.2008 6:07pm