A Cure for Lochner-phobia

Abstract

Lochner v. New York is widely considered one of the worst Supreme Court decisions in American history. The basis for much of this vitriol is a widespread belief that economic liberties of the sort protected in Lochner lack any basis in the Constitution, a view espoused by a host of authorities across the ideological spectrum — including Robert Bork, Ronald Dworkin, Akhil Amar, Clarence Thomas, Antonin Scalia, former Chief Justice William Rehnquist, and current Chief Justice John Roberts. I, however, dissent. I argue in this Paper that the result in Lochner, as well as the pre-New-Deal Court’s protection for liberty of contract and related economic rights in general, are based on defensible interpretations of the Constitution. In reaching this conclusion, I adhere to the philosophy of originalism, or the view that constitutional provisions have the meaning they had when they were adopted. I contribute to existing literature by attempting to assemble the most comprehensive and detailed originalist analysis possible of Lochner-era constitutional economic liberties, including some sources that, so far as I am aware, have been overlooked in the prior scholarship addressing this question; as well as by more fully exploring the contours of constitutional economic rights, by which I mean the traditional exceptions to these liberties and the standard of review courts should use in enforcing them. In this Paper, I begin with a brief discussion of the basis in constitutional text for protecting economic liberty of the sort courts enforced during the Lochner era. I then present a thorough originalist argument in favor of Lochner-era constitutional economic liberties based on evidence from the periods before and shortly after the Fourteenth Amendment’s adoption, respectively. Next, I identify several historically-justifiable exceptions to, or bases for restricting, these freedoms, formulating a judicial test for adjudicating economic-substantive-due-process challenges to legislation and applying the proposed test to the facts of a real case, so as to illustrate how the standard I devise would function in practice. I then mitigate the more radical implications of my arguments by suggesting some ways in which courts might revitalize more modest forms of economic liberty so as to minimize disruption to settled jurisprudence and give due deference to democratic policymaking. Finally, I conclude with discussion of the public-policy issues raised by my arguments.