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Did the Supreme Court Open the Door to Reviving One of Its Worst Decisions?


The dominance on the court of “originalism,” the doctrine that interprets the constitution and its amendments as they would have been understood at the time they were written, also bodes well for the principles of Lochner. As David Bernstein, a law professor at George Mason University, contends in his 2012 book, “Rehabilitating Lochner,” proponents of a freedom of contract were “originalists, trying to adhere to what they saw as the constitutional underpinnings of the 14th Amendment’s framers.”The case for Lochner is plainly embedded in the Dobbs decision. Writing for the majority, Justice Samuel Alito said that rights not explicitly mentioned in the Constitution had to be “deeply rooted …

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