Has the Supreme Court opened the door to reviving one of its worst decisions?


The dominance of “originalism,” the doctrine that interprets the Constitution and its amendments as they would have been understood at the time of their drafting, also bodes well for Lochner’s principles. As George Mason University law professor David Bernstein asserts in his 2012 book, Rehabilitating Lochner, proponents of contractual freedom were “originalists trying to adhere to what they saw as the constitutional foundations of the Fourteenth Amendment drafters considered. ”

Lochner’s case is clearly embedded in the Dobbs decision. Judge Samuel Alito wrote for the majority that rights not specifically mentioned in the constitution must be “deeply rooted in the history and tradition of this nation” and “implicit in the concept of ordered liberty.” In contrast to abortion rights, freedom of contract is generally believed to meet this definition.

Since the Declaration of Independence 246 years ago, the freedom to work and contract has been considered part of the “inalienable rights” to “life, liberty and the pursuit of happiness”. The founders drew on the work of the English philosopher John Locke, who identified “life, liberty and property” as inalienable rights and viewed the possession of one’s self as a form of property. The 14th Amendment echoes Locke’s language: “Nor shall any State deprive any person of life, liberty, or property without due process of law.”

In fact, by the time the Fourteenth Amendment was ratified in 1868, the notion that citizens have a fundamental right to enter into contracts, particularly in relation to their trade or employment, was so widespread that Lochner hardly spoke about it. The report simply asserted that these New York bakery workers had the right to contract as “part of an individual’s liberty protected by the 14th Amendment.”

Contract law was not all-encompassing in the Lochner case either. The legitimate exercise of state police powers went beyond a contract law. People could not make illegal agreements and the state was free to protect workers’ health and safety. Lochner specifically affirmed regulations protecting miners whose work was inherently unsafe. But the court found nothing fundamentally dangerous about baking.

However, many later state regulations, which are taken for granted today, violated this freedom of contract. In 1923, for example, the court abolished a minimum wage. (Libertarians have long argued that a minimum wage is both bad economic policy and an affront to individual liberty, particularly damaging to those at the bottom of the economic ladder.) In the post-Lochner era, that decision was reversed did.


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