Working Paper No. 03-18:
Lochner Era Revisionism, Revised: Lochner and the Origins of Fundamental Rights Constitutionalism

Author(s):

David Bernstein

Date Posted: 2003

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Abstract:

Lochner v. New York and its eponymous jurisprudential era have been central to constitutional discourse and debate in the United States for nearly one hundred years. Until recently, the legal community's understanding of the Lochner era was clouded by myths left over from the ideological and political battles of the Progressive and New Deal eras. In particular, the Lochner era Justices were portrayed as reactionary Social Darwinists who sought to impose a system of economic laissez-faire on the public. More recently, revisionist historians have disproved this and other myths, and have attempted to construct a more historically-grounded understanding of the Lochner era. The most popular revisionist work is Howard Gillman's book, "The Constitution Besieged." Gillman contends that the Lochner era Court was motivated by opposition to "class legislation," what today we would call special interest legislation. However, Gillman grossly overstates the role of class legislation analysis on the police powers jurisprudence of the United States Supreme Court during the Lochner era. Rather, as this Article shows, the basic motivation for Lochnerian jurisprudence was the Justices' belief that Americans had fundamental unenumerated constitutional rights, and that those rights were protected by the Fourteenth Amendment's Due Process Clause. The Justices had a generally historicist outlook, seeking to discover the content of fundamental rights through an understanding of which rights had created and advanced liberty among the Anglo-American people.

This Article, then, argues that the jurisprudential significance of Lochner was not, as Gillman and his supporters would have it, that the Court enforced a ban on class legislation. Quite the opposite, Lochner's primary importance is that it moved the Supreme Court away from class legislation (equal protection) analysis of police power legislation to an analysis that relied on the Justices' understanding of the fundamental liberties of the American people. In this regard, Lochner was the progenitor of modern substantive due process cases such as Griswold v. Connecticut and Roe v. Wade. Some will argue that the current Court should reassess its endorsement of Roe, because it is in the same tradition as Lochner. But perhaps the proper reaction to the conclusion that Lochner and Roe are in the same fundamental rights tradition is to reassess our understanding of Lochner.