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The Progressives' CenturyPolitical Reform, Constitutional Government, and the Modern American State$
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Stephen Skowronek, Stephen M Engel, and Bruce Ackerman

Print publication date: 2016

Print ISBN-13: 9780300204841

Published to Yale Scholarship Online: May 2017

DOI: 10.12987/yale/9780300204841.001.0001

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PRINTED FROM YALE SCHOLARSHIP ONLINE (www.yale.universitypressscholarship.com). (c) Copyright Yale University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in YSO for personal use.date: 23 September 2021

Reclaiming the Conceptual Legacy of the Progressives’ Critique of Rights

Reclaiming the Conceptual Legacy of the Progressives’ Critique of Rights

Equal Protection Without Higher Scrutiny

(p.108) 5 Reclaiming the Conceptual Legacy of the Progressives’ Critique of Rights
The Progressives' Century

Sonu Bedi

Yale University Press

This chapter assesses the legal implications of the Progressive agenda by drawing attention to the distinction between rights and state or governmental powers. First, it presents the Progressive critique of rights and its view of the Constitution as a document centrally about the powers of government and not about rights. In doing so, it argues that repudiating Lochner v. New York (1905) means that although the state may act on reasons relating to health or safety, other reasons may be constitutionally off-limits. Second, it illuminates this argument by analyzing the Court's jurisprudence on certain laws that discriminate against gays and lesbians. These cases point to a doctrinal framework that is not so much about vindicating rights as about ensuring that the state does not act on a bare desire to harm. Third, it considers this framework in light of the Court's jurisprudence on race.

Keywords:   Constitution, constitutional rights, state power, governmental power, Progressives, U.S. Supreme Court, Lochner v. New York, jurisprudence, gays, discrimination

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