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29 Wm. & Mary L. Rev. 83 (1987-1988)
The New Republicanism: Generosity of Spirit in Search of Something to Say

handle is hein.journals/wmlr29 and id is 93 raw text is: THE NEW REPUBLICANISM: GENEROSITY OF SPIRIT IN SEARCH OF SOMETHING TO SAY LARRY G. SIMON* I have four kinds of comments on the Horwitz paper.' First, and briefly, I want to mention one problem with what I take to be Hor- witz's historical thesis concerning the Lochner Court's place in constitutional jurisprudence or ideology. Second, and equally briefly, I want to suggest that the relevance of his historical analy- sis to the normative claim he appears to base on it is less than clear. Third, and at somewhat greater length, I want to suggest that insofar as we can find a definition of liberalism in the paper, this definition includes only the most conservative thinkers in what is usually deemed a much broader and more diverse tradition. Fourth, and again briefly, I want to question Professor Horwitz's aspiration for republicanism. I. First, I want to analyze only one part of Professor Horwitz's his- torical claim; namely, that the assumed misrepresentation of Loch- ner v. New York2 as a historical abberation has contemporary im- portance because it has persisted. I know of no significant evidence to support this claim. In certain liberal quarters, Lochner is taken as the paradigm of what the Court should not do.3 So far as I am aware, however, this view has not taken a historical turn in the last twenty years. That is, contemporary constitutional scholars do not argue that the case was a departure from precedent in the doctri- nal sense. The Lochner line of cases undoubtedly was unprecedented both socially and politically. Never before in its history had the Court * H.W. Armstrong Professor of Constitutional Law, University of Southern California. 1. Horwitz, Republicanism and Liberalism in American Constitutional Thought, 29 WM. & MARY L. REV. 57 (1987). 2. 198 U.S. 45 (1905). 3. See, e.g., Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920 (1973).

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