Lochner, Liberty, Property, and Human Rights

Abstract

This article recognizes that Lochner is justly criticized for protecting the property and contract claims of the strong against the weak. But it can be seen as part of a continuum of protection for a general concept of liberty that flowed from English concepts into today’s cases dealing with personal autonomy. After elaborating the basic themes in Part I, Part II traces the history of the general concept of liberty and makes an admittedly speculative claim: Perhaps the disruption of the Lochner era was in part attributable to the crabbed view of liberty that prevailed in the first interpretations of the post-Civil War Amendments. If the Supreme Court in the Slaughter-House Cases had recognized the right of occupation claimed by the New Orleans butchers as part of the liberty protected by due process, then the reformers of the late 19th and early 20th Centuries would have been on notice that economic rights existed. In return, the Court might have felt less pressure to lash out against economic-social reforms like wage and hour legislation. This claim only notes the relationship between the so-called economic and personal rights of due process liberty.

Part III then attempts to link these Anglo-American developments to international human rights. The general concept of liberty that has emerged victorious in Anglo-American law allows courts to consciously balance majority and minority interests. It can help moderate conflicting claims of right. Finally, it can help breathe content into some of the economic rights of international covenants such as the rights of education and medical care. As an element of liberty, these rights cannot support a specific allocation of resources, but could support enforceable claims to protection of economic rights against action by third parties.

Keywords: lochner, property, substantive due process