Those following the debate over Judge Sonia Sotomayor’s nomination to the Supreme Court may be interested in my article, recently published online free of charge, in The Objective Standard.
In that essay, “Justice Holmes and the Empty Constitution,” I focus on the constitutional theories of Justice Oliver Wendell Holmes, Jr., as reflected in a single dissenting opinion written in 1905 in the case of Lochner v. New York. Although the details of the case are long forgotten (it involved a law setting maximum hours for bakeshop workers), the various Justices’ opinions on constitutional interpretation have had lasting impact.
Holmes’s central point was that the Constitution does not embody any fundamental principle defining the relationship between man and the state—a point that would come as news to the Founding Fathers, who expressly declared their intention to form a government that would protect individual rights against the state. In Holmes’s view, it’s not a document for preserving liberty or implementing any political view at all. Rather, it’s an empty vessel into which society pours its ever-shifting, subjective opinions of what conduct should be permitted and what should be banned.