Lochner and Constitutional Continuity

Journal of Supreme Court History, Vol. 36, No. 2, pp. 116-128, July 2011

George Mason Law & Economics Research Paper No. 11-40

26 Pages Posted: 21 Sep 2011  

David Bernstein

George Mason University - Antonin Scalia Law School, Faculty

Date Written: September 21, 2011

Abstract

Lochner v. New York and the liberty of contract doctrine enunciated in that case have been denounced by legal scholars from all points of the political spectrum for decades. So perhaps the most surprising aspect of the history of the liberty of contract doctrine is that modern Fourteenth Amendment jurisprudence is at least as much a product of the Lochner line of cases as of the views of their Progressive opponents. Progressive critics of Lochner certainly emerged victorious on one very important issue — the Supreme Court no longer engages in serious review of economic regulations under the Due Process Clause. But despite the calumny heaped on the due process liberty of contract decisions and the Supreme Court Justices who wrote them, modern constitutional jurisprudence implicitly (and sometimes explicitly) draws a great deal from pre-New Deal due process decisions rejecting novel assertions of government power. This article is based on material published in David E. Bernstein, Rehabilitating Lochner: Defending Individual Rights against Progressive Reform (University of Chicago Press 2011).

Keywords: Adkins, bakery workers, Obama, Buchanan v. Warley, civil liberties, conservative, Felix Frankfurter, Gilded Age, Herbert Croly, individualism, liberal, Louis Brandeis, maximum hours law, minimum wage, Meyer, Morris Cohen, Nebraska, New Republic, Oliver Wendell Holmes, police power, Woodrow Wilson

JEL Classification: J41, K12, L14

Suggested Citation

Bernstein, David, Lochner and Constitutional Continuity (September 21, 2011). Journal of Supreme Court History, Vol. 36, No. 2, pp. 116-128, July 2011; George Mason Law & Economics Research Paper No. 11-40. Available at SSRN: https://ssrn.com/abstract=1931677

David Eliot Bernstein (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8089 (Phone)
703-993-8202 (Fax)

HOME PAGE: http://mason.gmu.edu/~dbernste

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