Book Description
In 2005, the Supreme Court decided Lochner v. New York, striking down a maximum hour law as violating the Due Process Clause of the Fourteenth Amendment. The Court's ruling in Lochner gave enhanced constitutional protection to liberty of contract, while taking a restrictive view of the police power of the states. As a result, the ability of a state to enact remedial legislation to protect workers was severely limited, and this occurred at a time when there was a great need for protective legislation in the workplace. Over the years, the decision in Lochner has been thoroughly discredited, to the point that it has come to signify judicial review gone astray. While recent attempts have been made to defend Lochner, the great weight of authority continues to condemn it. Still, Lochner remains an extremely influential decision, if for no other reason than the sustained reaction against it. Moreover, while liberty of contract has fallen from favor, the Supreme Court has returned to the Due Process Clause as a source of protection for another right, the right of privacy. This Article begins with a thorough analysis of the Court's decision in Lochner that covers the majority opinion, as well as the dissenting opinions of Justices Holmes and Harlan. The Article then considers various theories of what went wrong in Lochner. Was the Court's use of substantive due process review illegitimate? Was the Court's reasoning too formalistic, too wedded to common law categories and assumptions about the natural order of things? Or was it that the Court's approach was unduly activist, improperly expanding the Fourteenth Amendment in order to incorporate the personal values of the Justices? Finally, the Article traces the fall of liberty of contract and the rise of the right of privacy, as well as addressing recent attempts to defend Lochner. There still is much that can be learned from Lochner, and its centennial is an auspicious occasion for a searching examination of this infamous decision.
