Presence and Absence in Lochner: Making Rights Real

Abstract

The judicial branch, specifically the United States Supreme Court, continually engages in a dance between a desire for stability and a perceived need for change, between what the law “is” and what the law “ought to be.” The Court’s decision to balance governmental justifications against individual liberty interests in deciding constitutionality is the selection of an argumentative strategy, one which causes rhetorical problems for the Court. How does one “measure” various rights or interests and “weigh” them against each other? This Essay uses the majority opinion in Lochner v. New York, one of the Court’s most infamous attempts to balance the will of the majority against individual liberty interests, to illustrate the problems resulting from the Court’s decision to balance rights and governmental interests.

Keywords: Constitutional law, liberty, The United States Supreme Court, Lochner v. New York, judicial activism