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1955).

84.  Oliver Wendell Holmes, The Common Law (Boston:

Little, Brown, 1881).  See also Oliver Wendell Holmes,

"The Path of the Law," Harvard Law Review 10 (1897): 457-

78.  For discussions of those changes and their impact on

American law and politics, see Glenn Thurow, "Equality and

Constitutionalism: The Relationship of the Declaration of

Independence and the Constitution As Understood Today," in

Sarah Thurow, ed., Constitutionalism in America, vol. 1,

To Secure the Blessings of Liberty (Lanham, Md.: Univ-

ersity Press of America, 1988), pp. 305-20; and Roger

Pilon, "Freedom, Responsibility, and the Constitution: On

Recovering Our Founding Principles," Notre Dame Law Review

68 (1993): 507-47.  Mayer also has a brief discussion of

this issue, with references to many additional sources

(see especially pp. 95-96 and attendant notes).

85.  Thus, by 1905 Holmes could write--albeit, still in

dissent--that "a constitution is not intended to embody a

particular economic theory, whether of paternalism and the

organic relation of the citizen to the state or of laissez

faire," notwithstanding the explicit mention in the

Constitution of the rights of property and contract, the

foundations of laissez faire capitalism.  Lochner v. New

York, 198 U.S. 45, 75 (1905).  See Roger Pilon, "On the

Foundations of Economic Liberty," Freeman 38 (September

1988): 338-45.

86.  United States v. Carolene Products Co., 304 U.S. 144

(1938).  Footnote 4 has been called "[t]he great and mod-

ern charter for ordering the relations between judges and

other agencies of government."  Owen M. Fiss, "The Supreme

Court, 1978 Term--Forward: The Forms of Justice," Harvard

law Review 93 (1979): 1, 6.  For a devastating critique of

the politics behind the case, see Geoffrey P. Miller, "The

True Story of Carolene Products," 1987 Supreme Court

Review (1987): 397-428.

87.  In fact, the modern attack on natural rights had

begun long before Slaughterhouse, in 1791 in England, with

the famous remark of Jeremy Bentham, the father of British

utilitarianism, that talk of moral or natural rights was

"simple nonsense: natural and imprescriptible rights, rhe-

torical nonsense,--nonsense upon stilts."  Jeremy Bentham,

"Anarchical Fallacies," in The Works of Jeremy Bentham,

ed. John Bowring (Edinburgh: Tait, 1843), vol. 2, p. 501.

88.  Bork, p. 180.  The quotes from Bork that follow are

from pp. 180-82 (emphasis added).