Working Paper No. 06-32:
Lochner v. New York: A Centennial Retrospective

Author(s):

David Bernstein

Date Posted: 2006

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Abstract (below) |

Abstract:

This Article discusses two aspects of Lochner's history that have not yet been adequately addressed by the scholarly literature on the case.

Part I of the Article discusses the historical background of the Lochner case. The Article pays particular attention to the competing interest group pressures that led to the passage of the sixty-hour law at issue; the jurisprudential traditions that the parties appealed to in their arguments to the Court; the somewhat anomalous nature of the Court's invalidation of the law; and how to understand the Court's opinion on its own terms, shorn of the baggage of decades of careless and questionable historiography. In short, Part I places the Lochner opinion firmly in its historical context.

Part II of this Article explains how Lochner, which existed in relative obscurity for decades, became a leading anti-canonical case. As discussed in Part II, Lochner was initially famous only because of Oliver Wendell Holmes's much-cited dissent.  The Lochner cases modern notoriety, however, arose largely because the post-New Deal Supreme Court continued to treat the Lochnerian cases of Meyer v. Nebraska  and Pierce v. Society of Sisters as sound precedent.  Meyer, in particular, eventually became an important basis for the Warren and Burger Courts' substantive due process jurisprudence in the landmark cases of Griswold and Roe v. Wade.  Critics of those opinions attacked the Court for following in Lochner's footsteps, and, with some significant help from Laurence Tribe's 1978 constitutional law treatise, Lochner came to represent an entire era and style of jurisprudence.

Recently, the ghost of Lochner has been kept very much alive by Justices Kennedy, O'Connor, and Souter, each of whom has praised Meyer and Pierce as engaging in appropriately aggressive due process review of police power regulations, while straining to distinguish those opinions from Lochner.  Meanwhile, a revival of limited government ideology on the legal right, most notably in the Rehnquist Court's federalism opinions has raised (perhaps exaggerated) fears on the legal left that the conservatives seek to return, in spirit if not in letter, to the discredited jurisprudence of the Lochner era.  Yet virtually no one, on either the right or the left, challenges what may be the strongest evidence of Lochner's influence on modern jurisprudence: the Supreme Court's use of the Fourteenth Amendment's Due Process Clause to protect both enumerated and unenumerated individual rights against the states.