| 摘要: |
| 洛克纳诉纽约州案一向被认为是美国宪法史上最糟糕的案件之一。然而近几十年来，一个不同的洛克纳案正渐渐呈现出来。洛克纳案的多数意见是一份相当规范的普通法判决，并不存在根据自由放任的经济理论断案的问题。而且，也很难简单地认为洛克纳案违背了塞耶提炼出的“明显违宪”标准。至于司法篡权则更是无从谈起。正当程序条款的司法适用带来了对立法内容的合理性和恰当性的审查，因此司法案件的最终结果就只能诉诸每个大法官对利益的权衡，“搞定五票即可为所欲为”。这就极大地动摇了传统上的立法和司法的区分，“明显违宪”标准的衰落和“司法能动主义”的兴起乃是这个过程的自然结果。 |
| 关键词: 洛克纳诉纽约州案 正当法律程序 明显违宪 霍姆斯 司法能动主义 |
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| Lochner v. New York, Substantive Due Process and the Decline of “Obviously Unconstitutional” Doctrine |
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Yang Hongbin
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| Abstract: |
| Lochner v. New York has always been considered one of the worst cases in the constitutional history of the United States. However, during the last decades, a different image of the case has gradually emerged. The majority opinion of the Lochner is a fairly standard common law decision, and Holmes's accusation, that is, the case was decided according to the laissez-faire ideology, is untenable. Moreover, it's hard to say that the Lochner case violated Thayer's “obviously unconstitutional” doctrine, and there was no judicial usurpation of power. Because of the judicial application of due process clause, the Court has inevitably begun to review the reasonableness and appropriateness of legislation, and the final result can only resort to each judge's balance of merits, the consequence of which is “you could do anything with five votes”. As a result, the traditional distinction between legislation and judicial decision, law and policy, has been greatly shaken. The decline of the “obviously unconstitutional” doctrine is the natural result of this process. |
| Key words: Lochner v. New York, Due Process of Law, Obviously Unconstitutional, Holmes, Judicial Activism |
