'Wrong the Day it Was Decided': Lochner and Constitutional Historicism

Abstract:     
Until quite recently Lochner v. New York and Plessy v. Ferguson were canonical examples of how courts should not decide constitutional questions - both were generally considered not only wrong, but wrong the day they were decided. Although Plessy remains anti-canonical in this sense, for an increasing number of legal thinkers, Lochner no longer does.

This essay, written for the 100th anniversary of Lochner v. New York, explains why Lochner's canonical status has altered, and how changing views of Lochner are connected to (or driven by) contemporary theories of legitimate constitutional change. It also explores the connections between contemporary attitudes about Lochner and constitutional ethos - the stories that Americans tell each other about who we are, where we have come from, and what we stand for.

In analyzing these questions, the essay employs an approach called constitutional historicism, which holds that the conventions determining what is a good or bad legal argument about the Constitution, what is a plausible legal claim and what is off-the-wall, change over time in response to changing social, political, and historical conditions. The essay concludes by considering to what extent constitutional historicism might help constitutional theory.

Keywords: Lochner, Constitution, historicism, constitutional change

JEL Classifications: K10

Accepted Paper Series