In Lochner v. New York, the Supreme Court struck down a New York law limiting the hours an employer (John Lochner in this case) could require of his or her workers. "Liberty of Contract," was central in Justice Peckham's majority (5-4) opinion.
"...Under that provision no State can deprive any person of life, liberty or property without due process of law. The right to purchase or to sell labor is part of the liberty protected by this amendment..."
Liberty of Contract, in this case, upheld the right of the workers to freely negotiate their own wages and hours; having legislation passed to protect their own safety was unconstitutional simply because it infringed upon their right to negotiate their own contract. Reading this today, I couldn't help finding the idea ironic, almost to a humorous point.
On another note, the beauty of having numerous justices on a court plays it's trump card when stare decisis is overturned, as the concept of "liberty of contract," later was. The dissenting opinions of other justices almost provide a cleaner and more decisive transition. In other words, usually, when precedent is overturned, the majority opinion falls upon a preexisting, and formerly, a dissenting one. In Lochner, I found Justice Holmes' dissenting opinion to be particularly ahead of his time (and a classic adherence to his personal philosophy of judicial restraint).
"This case is decided upon an economic theory which a large part of the country does not entertain...I strongly believe that my agreement or disagreement [of the economic theory] has nothing to do with the right of a majority to embody their opinions in law...I think the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law."
Thursday, February 14, 2013
WR: Operating on Metaphysical Assumption
Our discussion in class this morning struck a resonant chord with me, particularly due to my consistent exposure to the methods in which academics study philosophers, or any academic for that matter. More often than not, when reading one particular scholar for an extended period of time, the professor will first direct students toward her or his metaphysical scholarship. For example, reading Plato makes a lot more sense when one is familiar with his Theory of Forms.
In no way am I comparing Plato with Crossan; I'm simply expressing the usefulness of operating on the same metaphysical assumptions of the scholar in which one is studying. It gives the student a much greater capacity for a charitable and insightful read of the author.
In no way am I comparing Plato with Crossan; I'm simply expressing the usefulness of operating on the same metaphysical assumptions of the scholar in which one is studying. It gives the student a much greater capacity for a charitable and insightful read of the author.
Thursday, February 7, 2013
WR: Chapter 11 in the Gita
In class today, we largely discussed chapter 11 of the Gita, and for good reason. Krishna reveals himself in his (infinite) totality, and evokes an grandiose measure of awe and terror from Arjuna. One passage in particular stuck out to me, however.
"I am time, the destroyer of all; I have come to consume the world. Even without your participation, all the warriors gathered here will die" (11.32).
I think this verse can come across as contradictory on the surface; Krishna seems to be proclaiming the eminent death of all, karma aside ("even without your participation..."). I think this verse is remarkably cohesive with the rest of the Gita, however. Krishna is a human incarnate of Vishnu, one of the gods, and in that sense, is "everything." Therefore, it makes perfect sense for Krishna to claim, "I am time..."
Moreover, if Krishna is time, and time (whether we like it or not) kills us, albeit, some slower or faster than others, it would still follow that Krishna is the destroyer of all. Even that line, although it seems grim, cannot be taken with adherence to the very first chapter, in which Krishna refers to physical, bodily, death, as the shedding of an old coat.
"I am time, the destroyer of all; I have come to consume the world. Even without your participation, all the warriors gathered here will die" (11.32).
I think this verse can come across as contradictory on the surface; Krishna seems to be proclaiming the eminent death of all, karma aside ("even without your participation..."). I think this verse is remarkably cohesive with the rest of the Gita, however. Krishna is a human incarnate of Vishnu, one of the gods, and in that sense, is "everything." Therefore, it makes perfect sense for Krishna to claim, "I am time..."
Moreover, if Krishna is time, and time (whether we like it or not) kills us, albeit, some slower or faster than others, it would still follow that Krishna is the destroyer of all. Even that line, although it seems grim, cannot be taken with adherence to the very first chapter, in which Krishna refers to physical, bodily, death, as the shedding of an old coat.
CLP: The Line of Best Fit
In class today, we spoke of the line of "best fit," as it pertains to legal theory. I think it is fairly obvious that this is a generalization, and in fact, the law and the principles that are factored into interpreting past law are very messy. With that being said, in the United States at least, in my opinion, the line of best fit can be best applied to our basic first amendment freedoms.
For example, our freedom of speech is a right which many think transcends circumstance; in other words, situations in which the circumstances are different can still expect (reasonably, of course) that one's freedom of speech, or expression, can be protected.
Of course, many points that the line of best fit surrounds are not on the line; some can be a good distance away. In the case of free speech in the US, we have found out over the centuries various limitations of speech. As a general rule of thumb, whenever this speech hinders the bureaucratic process of government (draft card burning) or whenever speech translates to action which presents "clear and present danger," we begin to see limitations. Moreover, speech has more restrictions (appropriateness, time and manner) when it comes to schools. All of these different cases, hypothetically speaking, would lie somewhere along the line of best fit that is the freedom of speech.
For example, our freedom of speech is a right which many think transcends circumstance; in other words, situations in which the circumstances are different can still expect (reasonably, of course) that one's freedom of speech, or expression, can be protected.
Of course, many points that the line of best fit surrounds are not on the line; some can be a good distance away. In the case of free speech in the US, we have found out over the centuries various limitations of speech. As a general rule of thumb, whenever this speech hinders the bureaucratic process of government (draft card burning) or whenever speech translates to action which presents "clear and present danger," we begin to see limitations. Moreover, speech has more restrictions (appropriateness, time and manner) when it comes to schools. All of these different cases, hypothetically speaking, would lie somewhere along the line of best fit that is the freedom of speech.
Thursday, January 31, 2013
WR: Grasping "Brahman," from the Judea-Christian Lense
In class on Tuesday, we discussed the concept of attaining enlightenment at the end one's life. It's easy to see how one from a Judea-Christian viewpoint can mistakenly equate the concept of heaven with enlightenment.
In my opinion, the biggest difference is the idea of judgement. Judea-Christian followers believe that they will be judged by God upon their worldly death. The Hindu concept of enlightenment is similar in some regards yet very different in others. A person's Karma is dependent on their attainment of enlightenment. This has nothing to do with being judged; one's actions, and Karma, merely contribute to reaching the metaphysical idea of enlightenment. One either does or does not attain it at the end of a life, regardless of any judgement.
My one question is this; if Karma is based on action, what about intent? Action A can have drastically different "ripples" for persons B and C.
In my opinion, the biggest difference is the idea of judgement. Judea-Christian followers believe that they will be judged by God upon their worldly death. The Hindu concept of enlightenment is similar in some regards yet very different in others. A person's Karma is dependent on their attainment of enlightenment. This has nothing to do with being judged; one's actions, and Karma, merely contribute to reaching the metaphysical idea of enlightenment. One either does or does not attain it at the end of a life, regardless of any judgement.
My one question is this; if Karma is based on action, what about intent? Action A can have drastically different "ripples" for persons B and C.
CLP: The 'Hegemonic Consciousness' of Law
"[Gramsci]...observed that social order is maintained by a system of beliefs which are accepted as 'common sense' and part of the natural order- even by those who are actually subordinated to it. In other words, these ideas are treaded as eternal and necessary whereas they really reflect only the transitory, arbitrary interests of the dominant elite" (Wacks, 95).
Gramsci's (marxist) theory makes the most sense (for the sake of argument) with law regulating or deregulating economic policy, and the judicial review thereof. For example, while the Supreme Court struck down a good deal of progressive, worker friendly legislation in the 1920's, the New Deal court stepped aside during the presidency of FDR. While there are clearly many different actors and variables which contribute to the situation in which the Supreme Court exercises judicial review, its worth considering that the will of the power players in our country (big business in the 20s, and conversely, the enormous popularity of FDR) have an affect on the decisions of the courts.
Gramsci's (marxist) theory makes the most sense (for the sake of argument) with law regulating or deregulating economic policy, and the judicial review thereof. For example, while the Supreme Court struck down a good deal of progressive, worker friendly legislation in the 1920's, the New Deal court stepped aside during the presidency of FDR. While there are clearly many different actors and variables which contribute to the situation in which the Supreme Court exercises judicial review, its worth considering that the will of the power players in our country (big business in the 20s, and conversely, the enormous popularity of FDR) have an affect on the decisions of the courts.
Thursday, January 24, 2013
CLP: Judges as "Literary Critics"
Ronald Dworkin gives the example of the story of morality and law as being one of a giant chain novel, and the judge as a novelist, and when he interprets prior novels (i.e., using precedent in hard cases). However, do judges "make" laws? Or interpret them? Are those terms even distinguishable?
While some legal positivists would say that the judge does indeed make decisions, in some cases, based on "personal discretion," Dworkin argues that every decision is an interpretation, and every interpretation contains evaluation. Evaluation inherently contains some kind of moral judgement. Therefore, every decision contains moral judgement, considering, of course, his premises hold up. If every decision contains moral judgement, and laws are merely legislated forms of moral judgement, than do judges make laws, or uncover them?
More accurate and constructive "interpretations," of the United States Constitution have led to judicial decisions which confirm universal human civil rights, suffrage, ect. The fact that some of these decisions came along later than others does not imply that they have not always existed within the human race, for our entire existence. With that being said, are those laws created, or as John Marshall famously said, do judges merely, "say what the law is." One cannot create or make what has always existed.
While some legal positivists would say that the judge does indeed make decisions, in some cases, based on "personal discretion," Dworkin argues that every decision is an interpretation, and every interpretation contains evaluation. Evaluation inherently contains some kind of moral judgement. Therefore, every decision contains moral judgement, considering, of course, his premises hold up. If every decision contains moral judgement, and laws are merely legislated forms of moral judgement, than do judges make laws, or uncover them?
More accurate and constructive "interpretations," of the United States Constitution have led to judicial decisions which confirm universal human civil rights, suffrage, ect. The fact that some of these decisions came along later than others does not imply that they have not always existed within the human race, for our entire existence. With that being said, are those laws created, or as John Marshall famously said, do judges merely, "say what the law is." One cannot create or make what has always existed.
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