Constitutional Economics: Lochner, Labor, and the Battle for Liberty

28 Yale Journal of Law & the Humanities 1 (2017)

50 Pages Posted: 24 Jul 2016 Last revised: 15 Jul 2017

See all articles by Luke Norris

Luke Norris

University of Richmond School of Law

Date Written: July 20, 2016

Abstract

This Article argues that the conventional narrative about the decline of Lochnerism and the rise of mid-century substantive due process jurisprudence is incomplete. That narrative focuses initially on how the premises underlying Lochner’s conception of economic freedom were rejected. The Article instead focuses on how the labor movement articulated an alternative conception of freedom that was adopted by Congress, the Executive, and the Supreme Court. While Lochnerism was premised on a negative view of freedom, the labor movement articulated a positive view of freedom and analogized it to republican freedom of association in the political sphere. By reframing the terms of the Lochner-labor debate, the Article shows how strands of labor’s conception of associational freedom in one nominally private sphere — the workplace — are transported into modern substantive due process jurisprudence in the post-Griswold era as the doctrine protects association in another — the intimate sphere. The Article traces similarities between the rise of labor’s freedom and the rise of sexual and intimate freedoms and explores the ways in which they have transformed American constitutional law.

Suggested Citation

Norris, Luke, Constitutional Economics: Lochner, Labor, and the Battle for Liberty (July 20, 2016). 28 Yale Journal of Law & the Humanities 1 (2017). Available at SSRN: https://ssrn.com/abstract=2812199

Luke Norris (Contact Author)

University of Richmond School of Law ( email )

203 Richmond Way
Richmond, VA 23173
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
175
Abstract Views
841
rank
170,342
PlumX Metrics