Working Paper No. 03-15:
Lochner's Legacy's Legacy

Author(s):

David Bernstein

Date Posted: 2003

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Abstract:

Avoiding "Lochner's error" remains a primary focus of constitutional law and constitutional scholarship. Debate, however, continues regarding just what that error was. In Cass Sunstein's oft-cited 1987 Columbia Law Review article, Lochner's Legacy, Sunstein argues that the Lochner era Court's primary error was not its purported "judicial activism." Rather, the primary problem with Lochner was the Justices' belief that market ordering under the common law was part of nature rather than a legal construct, and formed a baseline from which to measure the constitutionality of state action, rendering redistributive regulations unconstitutional.

Lochner's Legacy's understanding of the Lochner era has been widely accepted in legal circles, including by four current Supreme Court Justices. As conservative and liberal Justices continue to battle over the meaning of Lochner and its significance for modern constitutional jurisprudence, the liberal Justices have adopted Lochner's Legacy's historical thesis.

This Article examines three major historical claims Lochner's Legacy makes about the Lochner era: (1) that the Lochner era Supreme Court understood the common law "to be part of nature rather than a legal construct"; (2) that the Lochner era Court sought to preserve what it saw as the "natural," "status quo" distribution of wealth against redistributive regulations; and (3) that the abandonment of Lochner resulted from the Supreme Court's recognition that the problem with Lochner and its progeny was that the Court in those decisions mistakenly treated government inaction as the "baseline" to determine the constitutionality of government regulations. This Article argues that all three of these propositions are demonstrably incorrect.