Prior to the New Deal, the Supreme Court viewed individual natural rights as the most important liberties. Since then, the Supreme Court has enlarged government involvement, restricted liberties of private property and has created government regulations to protect and equalize social and economic aspects of life. From Locher v. New York in 1905 until 1937 with United States v. Carolene, the United States had operated under the ideology of protecting natural rights, especially the Bill of Rights and enforced it through the Fourteenth Amendment's Due Process clause. It is in the Carolene case where we begin to find more government involvement, less protection of property and a new group of individual liberties that are valued more than property.
[...] In On Liberty he viewed utility "as the ultimate appeal on all ethical questions; but it must be utility in the largest sense, grounded on the permanent interests of a man as a progressive being." So Mill viewed humans as progressive and would have agreed with the New Deal era court and their ability to make legislation in order to further equality and guarantee some basic rights to workers. However, he would have objected to the type of private property eminent domain use that the current court has embraced, which would have undermined his most important principle, “That principle is, that the sole end for which mankind is warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. [...]
[...] It was clearly apparent in the Homes dissent in the Lochner case, as he writes liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well-known writers is interfered with by school laws, by the post office, by every state or municipal institution which takes his money for purposes thought desirable, weather he likes it or not.” A more progressive attitude in public opinion, and an appeal toward a more democratic state focused on the public good created an opportunity for the court to be swayed by public opinion. [...]
[...] Kotch filed the lawsuit believing this to be an unfair appointment system and to be in violation of his Fourteenth Amendment's right to due process. However he lost because the riverboat operation operated safely, and the Justices believed that as long as it was safe it was in the public good. In United States v. Carolene Products, the court rejected the president of economic due process. Carolene argued that interfering with their business was in violation of their due process and the commerce clause. [...]
[...] The modern court has taken the progressive reforms propagated by the New Deal court further than anything they would have suggested. Ironically, by treating the public good as supreme, the court has done the very thing that the footnote four was trying to protect against, seizing the property of the politically powerless to give it to the politically powerful. This type of judicial legislation is most evident in Kelo v. City of New London, where the government is taking land from private citizens through the use of eminent domain and giving it to another citizen purely for economic benefit's that will result for the region such as jobs. [...]
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