@ijsanders.bsky.social previously explored what contemporary state courts mean when they refer to "natural rights" and how they've applied natural rights provisions.

I give very unsolicited advice to progressive lawyers: It’s time to reconsider Lochner & make it your friend. Otherwise you’ll get more loses like this one. The old world of a few special rights getting strict scrutiny while consigning economic rights to the anticanon is over. [ducks] 6/6

I look at a North Dakota case from the tail end of the “Lochner era.” That era wasn’t perfect but it gives lessons on how to engage with the “big” words in many state constitutions, constitutions that scare judges away from taking them seriously. 5/

I (and maybe Robert Nozick) might answer “so what?” But instead I offer a method that doesn’t minimize big words into nothing—what the opinion seems to do. Instead, read them as protecting liberty yet allowing *reasonable*—as in backed by with real reason and facts—regulation. 4/

An opinion in the case confronted the “big” words in the state constitution like “liberty” and “happiness.” How to interpret those? The opinion said you can’t *actually* apply those words as they would knock-out most of government! 3/

The case I focus on is a challenge to an abortion law under North Dakota’s constitution. But my message is much broader than abortion. 2/

Form linked here:

Eric Foner, "What the Fugitive Slave Act Teaches Us About How States Can Resist Oppressive Federal Power," The Nation -- February 27, 2017
www.thenation.com/article/arch...