Et tu, Bruce?

What is it with Lochner and conservatives? Is it some fear of Brown v. Board driving them? It's not just Rich Lowry who can't get some basics right. Now Bruce Fein joins in with mindless throw aways.

During the so-called Lochner era, the Court manufactured a right to "freedom of contract" to topple economic regulatory statutes like ten pins, for example, minimum wage or maximum hours laws. Devastating dissents by renowned Justices Oliver Wendell Holmes, Louis D. Brandeis and Harlan Fiske Stone were impotent against the majority, consisting of mediocrities who slavishly echoed public orthodoxies. And mediocrities will inescapably dominate any collective body. Only when President Franklin D. Roosevelt's New Deal and Keynesian economics displaced Adam Smith and Herbert Spencer's Social Statics as conventional wisdom did the Supreme Court repudiate Lochner.

Uh, Bruce, property is a pretty damned important right. Pretty much, I'd say, more important than habeas corpus, which is pretty much the most important right in any constitution, even the right to a jury. Why the rampant, easy Lochner bashing? Are all of these would be conservatives really just arguing that all-powerful government is fine, so long as it does what they want?

UPDATE: Anonymous weighs in with true and good insight:

[Conservatives saying they want judges who follow the law and not legislate] makes them say things like Judge Bork's infamous statement that the Ninth Amendment should essentially be blotted out, since it can't really mean anything. . . . it forces conservatives to say that a judge can't do anything unless the Constitution says it nice and clear.
There can be no "right to privacy" even though there are lots and lots of hints at it in the Constitution (the Fourth Amendment being the most obvious) because you've got to talk about penumbras and such stuff to make it happen. Well, the same applies to the Right To Property. Sure, there's the Takings Clause (mostly dormant through much of our history) and we can guess that the Founding Fathers thought government should protect property by upholding contracts, but one you're beyond that you're in penumbra-land. At that point, either you let the legislature decide the limits of property, or you let the courts go hog-wild. It would be too hypocritical for conservatives to allow the latter.

Columbus Guy says: The Ninth and 10th amendments are indeed a problem, as they could be exceptions that swallow the Constitution and create total license in judges. But they don't have to be interpreted this way; it's easy enough to imagine a slowly moving common law of rights reserved to the people. It might, indeed, end up not that much different than what we've experienced under the Warren Court (which, I understand, these Lochner-bashing types abhore). But there is no reason I can see for conservatives to continually bash Lochner (or to hype the New Deal, amounting to much the same thing). It's not going to gain them anything, and it is going to cost them.

As far as property itself goes, its infused throughout the Constitution. You can't even have taxes if you don't have property, the thing is full of contract clauses for this, that and the other (how can you have bankrupcty or patents without property?). These communists, socialists and law professors who argue otherwise are either fools or mendacious or both, even if they are sometimes smart fools. Clever sayings about Herbert Spencer's Social Statics aside, our entire national existence is built around property, trade and, yes, contract. No free society can be otherwise.

(ANd I have to quibble; the Takings Cluase has not been dormant. Property rights have been dwindling as government power has expanded, but that's not quite the same thing.)