Weimar: A Jurisprudence of Crisis by Arthur Jacobson, Bernhard Schlink

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By Arthur Jacobson, Bernhard Schlink

This feature of the foremost works of constitutional idea in the course of the Weimar interval displays the reactions of felony students to a kingdom in everlasting drawback, a society during which all bets have been off. but the Weimar Republic's short test in constitutionalism laid the foundation for the postwar Federal Republic, and this day its classes will be of use to states during the global. Weimar felony idea is a key to figuring out the event of countries turning from conventional, spiritual, or command-and-control types of legitimation to the guideline of legislations. in simple terms of those authors, Hans Kelsen and Carl Schmitt, were released to any volume in English, yet they and the others whose writings are translated the following performed key roles within the political and constitutional struggles of the Weimar Republic. serious introductions to all of the theorists and commentaries on their works were supplied by means of specialists from Austria, Canada, Germany, and the USA. of their normal creation, the editors position the Weimar debate within the context of the heritage and politics of the Weimar Republic and the fight for constitutionalism in Germany. This severe scrutiny of the Weimar jurisprudence of drawback deals a useful assessment of the perils and promise of constitutional improvement in states that lack an entrenched culture of constitutionalism.

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It was Lochner, like Dred Scott before it, that through a chain of events would transform the ambiguities of the Fourteenth Amendment into a crisis of constitutional governance. Unlike Dred Scott, however, the political conditions precipitating the crisis took a quarter-century to develop. Over dissents by Justices Oliver Wendell Holmes and John Marshall Harlan (who were joined by Justices Edward White and William Day), Lochner held unconstitutional a New York statute of the Progressive Era (1897) making it unlawful for bakers or confectioners to require or permit employees to work more than sixty hours per week or ten hours per day, on the ground that the statute deprives both employers and employees of a “liberty” to contract protected by due process.

But, says Taney, states can make anyone a citizen of the state, even aliens. Presumably (though Taney is silent on the subject) they can even make “negro slaves” or their descendants citizens, even when, as the Court holds, the Constitution forbids including them as citizens of the United States. The federal government, by contrast, gets this power only indirectly, by implication, since nowhere does the Constitution (as it stood in 1791) define or discuss citizenship of the United States, only the power of Congress to make a uniform rule of naturalization.

First, Lochner required that legal rules sustaining private economic activity have a source other than political fiat. Otherwise all matters would be “affected with a public interest” and subject to regulation, free of due process. If private law cannot trace its source to something other than ordinary politics, then the state that gave rules in the first place can alter them or take them away. Then immutable private law rules cease to function as a bulwark against regulatory incursion. So, the early realists set about attacking formalist or naturalist derivations of private law, all to prove that politics and only politics had a hand in creating it.

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