Nourse, Victoria F. - A Tale of Two Lochners - The Untold History of Substantive Due Process and The Idea of Fundamental Rights

A Tale of Two Lochners: The Untold
History of Substantive Due Process and

the Idea of Fundamental Rights
Victoria F. Nourset
To say that the Supreme Court's decision in Lochner v. New York, is

infamous is an understatement. Scholars remember Lochner for its strong right
to contract and laissez-faire ideals-at least that is the conventional account of
the case. Whether one concludes that Lochner leads to the judicial activism of
Roe v. Wade, or foreshadows strong property rights, 2 the standard account
depends upon an important assumption: that the Lochner era's conception of
fundamental rights parallels that of today. 3 From that assumption, it appears to
follow that Lochner symbolizes the grave political dangers of substantive due
Copyright © 2009 California Law Review, Inc. California Law Review, Inc. (CLR) is a
California nonprofit corporation. CLR and the authors are solely responsible for the content of
their publications.
t L.Q.C. Lamar Professor of Law, Emory University School of Law; Burrus-Bascom
Professor of Law, University of Wisconsin Law School. This paper was presented at colloquia at
Emory University School of Law and the University of Wisconsin Law School in 2008; it was
also the basis of a paper presented at the 2009 Association of American Law Schools (AALS)
"New Legal Realism" panel, authored with Greg Shaffer, Varieties of New Legal Realism, 95
CORNELL L. REV. (forthcoming Nov. 2009) (manuscript on file with author). Special thanks to
those at the Emory University Law School who commented on this paper, including Michael
Perry, Martha Fineman, Robert Schapiro, Bill Buzbee, Morgan Cloud, Tom Arthur, Ani Satz, Liza
Vertinsky and many others; thanks as well to those at the University of Wisconsin Law School
who engaged with the paper's focus on new legal realism, including Stewart Macaulay, Beth
Mertz, Heinz Klug, Brad Snyder, Andrew Coan, David Schwartz, and many others. A special
thank you to my research assistants at Emory, Dan Conner, Laura Pisarello, and Jack Figura, for
excellent work. All errors are, of course, my own.
1. 198 U.S. 45 (1905).
2. Compare John Hart Ely, The Wages of Crying Wolf. A Comment on Roe v. Wade, 82
YALE L.J. 920, 939-40 (1973), with Richard A. Epstein, The Mistakes of 1937, 11 GEO. MASON U.
L. REV., Winter 1988, at 5, 13-15.
3. Opponents in the great Lochner battles share this view. See, e.g., David E. Bernstein,
Lochner Era Revisionism Revised, 92 GEO. L.J. 1, 12 (2003) ("[T]he basic motivation for
Lochnerian jurisprudence was the Justices' belief that Americans had fundamental unenumerated
constitutional rights."); Barry Friedman, The History of the Counter-majoritarianDifficulty, Part
Three: The Lesson of Lochner, 76 N.Y.U. L. REV. 1383, 1404 (2001) ("[T]he tool for judicial
usurpation was the (mis)reading into the Constitution of rights not clearly set out there, such as the
liberty of contract.").
CALIFORNIA LA W REVIEW [Vol. 97:751
4
process, with its "repulsive connotation of value-laden" judicial review.
This Article's thesis is that the conventional account is based on
presentist 5 notions of right imposed upon the past. Today, fundamental rights
invoked under the Due Process Clause 6 are presumed "fatal in fact," 7 but in
1905 when Lochner was decided, rights claims were common but rarely fatal.
Today, fundamental rights trump the general welfare, whereas in 1905, under
the police power of the state, the general welfare trumped rights. 8 Today, courts
define unenumerated rights in positive terms; they struggle to define the "right
to die" or the "right to reject life-saving" treatment. 9 Then, courts assumed
rights existed prior to any written constitution, and enumeration was no grand
ideal-rights were defined negatively by drawing limits on federal and state
power.' 0 As the Fourteenth Amendment itself proclaimed, liberty and property
4. Gerald Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A

Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 42 (1972); Aviam Soifer, The Paradox
of Paternalismand Laissez-Faire Constitutionalism: United States Supreme Court, 1888-1921, 5
LAW & HIST. REV. 249 (1987) ("Lochner ...is still shorthand in constitutional law for the worst
sins of subjective judicial activism.").
5. By "presentist," I mean the anachronistic injection of present-day ideas and
perspectives into depictions and interpretations of the past. The formal definition of right I am
using is taken from David Luban, The Warren Court and the Concept of a Right, in RIGHTS 7 n. 13
(Robin West ed., 2001). Luban writes that "to call something a right is to assert that it is a value of
such great importance that it deserves especially stringent legal protection." Id. When I refer
throughout the piece to a "strong" right, this is the meaning I am using.
6. My claim is limited to the Due Process Clause of the Fourteenth Amendment. It is
entirely possible that other rights claims could have been viewed differently. Criminal procedure
rights as applied to the federal government, for example, may not have followed the pattern I
suggest here. See Morgan Cloud, The Fourth Amendment During the Lochner Era: Privacy,
Property and Liberty in Constitutional Theory, 48 STAN. L. REV. 555, 576 (1996) (arguing that
the 1886 Boyd case invoked the language of indefeasible and thus strong rights). In state cases,
however, one can find Progressive Era precedent in which the police power trumped even criminal
procedure rights. For example, the defendant's right to be free from unreasonable search and
seizure was trumped if the property seized was subject to the police power (if the property was
harmful or an instrumentality of crime). See, e.g., Adams v. New York, 192 U.S. 585 (1904). One
need not resolve that controversy to address the principal question in this article. The Fourteenth
Amendment provides that the state may deprive individuals of their rights if done so in accordance
with "due process of law." Although at the time, the Court spent little time on textual language,
see infra text accompanying note 61, today it is possible to see the "due process" limitation as the
source of claims that rights under the Fourteenth Amendment might be trumped by the police
power in ways that might not apply to Bill of Rights provisions applied to the federal government.
7. "Fatal in fact" is the term once used by Gerald Gunther to refer to constitutional review
akin to strict scrutiny--"'strict' in theory and fatal in fact." Gunther, supra note 4, at 8.
8. One of the persistent problems in the historiography of this period, as Robert Gordon
has noted, is the gap between the theory of a "laissez-faire" court and the progressive practice
which elicited vast amounts of legislation. Robert W. Gordon, The Constitution of Liberal Order
at the Troubled Beginnings of the Modern State, 58 U. MIAMI L. REV. 373 (2003).
9. See Washington v. Glucksberg, 521 U.S. 702, 703 (1997).
10. The older view reflected a larger theory that has been lost. At the time, people widely
believed that individual rights existed prior to the Constitution, were not given up in the creation
of the Constitution, and thus did not need to be enumerated. Therefore, they thought that the limits
on federal power (e.g., the commerce power) were as important protectors of rights as the Due
Process Clause or specific texts in the Bill of Rights. See, e.g., OWEN M. FIss, TROUBLED
20091 A TALE OF TWO LOCHNERS
could be deprived subject to "due process," which meant rights were subject to
a limit defined by the courts as the "police power." In this sense, the
fundamental rights jurisprudence of the Lochner period was the mirror image
of today's notion of right-as-trump. Today, no constitutionalist would mistake
rational basis for strict scrutiny, but this is precisely what we do when we
assume that Lochner-era courts adopted a strong, trumping view of
fundamental rights.
I do not dispute the standard claim that the Lochner decision betrays12
1
political bias, laissez-faire theory, or Herbert Spencer's Social Statics.
Lochner was wrong when it was decided-wrong because, as Justice Harlan
announced in his dissent, the hours law fell within the police power. That was
the run-of-the-mine doctrine of the day, one in which rights claims were easily
overcome by the police power. The Lochner bias was not against regulation
simpliciter; it was bias against labor and price regulation-both of which
carried ominous associations with socialism at the time. 13 If I do not dispute
many aspects of the conventional Lochner account, I do dispute the
assumption, shared by conservative property rights advocates like Richard
Epstein, and prominent liberal constitutionalists like John Hart Ely, 14 that the
Lochner-era doctrine, writ large, embraced a modem notion of right-as-trump.
If we return to the Lochner era, without the presentist assumption of right,
we find that there were two tales of Lochner that once lived side by side.
Doctrinally, rights were relatively weak, since they could be trumped by the
police power. But outside the courts, the public assumed rights were strong and
absolute. These two stories once lived simultaneously. As we will see,
Theodore Roosevelt is at least as important as Oliver Wendell Holmes in
creating Lochner's modem history. There is nothing terribly odd about this.
Indeed, this double history reflects the structure of constitutional politics, which
is simultaneously an elite discursive institution and a popular majoritarian
institution.
This account of Lochner challenges the reigning dichotomy among
historians between "intemalist" and "extemalist" historiography-between
BEGINNINGS OF THE MODERN STATE, 1888-191o, at 109 (1993) ("[T]he federal government was
a government of limited powers.... The Constitution enumerated and assigned various powers to
the central government . . . and the initial task for the Court was to ascertain whether [the
challenged action] fell within" that power.)
11. Nor am I committing to the perspective of those legal historians who suggest that
Lochner reflected a benign legal doctrine searching for equality and neutrality. See BARRY
CUSHMAN, RETHINKING THE NEW DEAL: THE STRUCTURE OF A CONSTITUTIONAL REVOLUTION
(1998); HOWARD GILLMAN, THE CONSTITUTION BESIEGED (1993); G. EDWARD WHITE, THE
CONSTITUTION AND THE NEW DEAL (2000).
12. See Lochner v. New York, 198 U.S. 45, 75-76 (1905) (Holmes, J., dissenting)
(discussing Social Statics); Fiss, supra note 10 (laissez-faire contract theory); Cass R. Sunstein,
Lochner's Legacy, 87 COLUM. L. REV. 873, 878 (1987) (status quo bias).
13. See infra note 256 and accompanying text.
14. Ely, supra note 2, at 939-40; Epstein, supra note 2, at 13-15.
those theories grounded, respectively, in law and in politics. 15 Remembering

only one side of the story-the strong rights story-not only misreads doctrine,
it also misreads history. Lawyers infer from the traditional Lochner story that
the period from 1900 to 192016 was an era in which courts regularly thwarted
all regulation, and thus they imagine it as a period of the night-watchman,
laissez-faire state. 17 Few historians agree. The Progressive Era (as this period
was known) was full of reform and regulation, from trust-busting to railroad
regulation to labor injunctions; from consumer protection and the federal
reserve to worker's compensation; from regulations of drink, lotteries, fight
films, and stolen cars to seditious speech to birth control' 8 -and the Court's
case law did little to squelch any of these regulatory impulses, for good or ill. 19
15. Externalist histories aim to explain law by invoking external events, such as changes in
society or politics or technology, while internalist explanations focus on legal doctrine. For more
on this distinction, see CUSHMAN, supra note 11, at Introduction.
16. The Lochner era is generally considered the period from 1890 until 1937, an
assumption that I reject in this article. Some have suggested that there are, in fact, three separate
Lochner periods. David E. Bernstein, Lochner's Legacy's Legacy, 82 TEX. L. REV. 1, 10 (2003).
Here, my focus is on the period from 1900 until World War I, which follows general historical
practice, see JOHN MILTON COOPER, JR., PIVOTAL DECADES: THE UNITED STATES 1900-1920
(1990), rather than the various claims made by legal scholars about the Lochner era. Typically,
Lochner critics and students include the period from as early as 1880-1900 in their claims, but
legal commentators of the early twentieth century used "laissez-faire" to refer to the nineteenth,
not the twentieth, century. See, e.g., Lucius POLK MCGEHEE, DUE PROCESS OF LAW UNDER THE
FEDERAL CONSTITUTION 362 (1906) ("Enlightened public opinion, as reflected by our legislatures
and courts, has receded from the strict doctrine of laissez-faire, and we cannot say that a further
abandonment of that position may not be advisable."). For a critique of laissez-faire theory, see
Roscoe Pound, Liberty of Contract, 18 YALE L.J. 454, 478 (1909) ("After 1900, the pendulum had
clearly begun to swing the other way."). I do note at the outset that this periodization excludes the
Taft court's revival of Lochner in its 1923 decision in Adkins v. Children'sHospital, 261 U.S. 525
(1923). That revival changed and considerably strengthened the notion of right regnant before
World War I, in a subset of cases involving price and wage controls.
17. Gordon, supra note 8, at 395; see infra note 248.
18. COOPER, supra note 16, at 97 (railroad regulation), 150-51 (antitrust); WILLIAM E.
FORBATH, LAW AND THE SHAPING OF THE AMERICAN LABOR MOVEMENT (1991) (labor
injunctions);
VICTORIA F. NOURSE, IN RECKLESS HANDS: SKINNER V. OKLAHOMA AND THE NEAR-
TRIUMPH OF AMERICAN EUGENICS ch. 7 (2008) (eugenics); CHARLES WARREN, SUPREME COURT
IN UNITED STATES HISTORY 452 (1923) (listing railroad and other commercial federal legislation
including regulation of telegraph, telephone and cable companies); id. at 459 (food and drug
regulation); Gordon, supra note 8, at 373 (regulation imposing gender subordination, racial
segregation, and restricting political speech); Note, Limitations on State Police Power under the
"Due Process" and "Equal Protection" Clauses, 22 COLUM. L. REV. 252, 326 (1922) (fight films
and stolen cars).
19. Law students are often treated to the claim that during the Lochner era "over two
hundred" statutes were struck down. See, e.g., GEOFFREY R. STONE ET AL., CONSTITUTIONAL
LAW 724 (4th ed. 2001) ("the Court invalidated approximately 200 economic regulations"). One
source for this misconception may be Appendix I to FELIX FRANKFURTER, MR. HOLMES AND THE
SUPREME COURT 97-137 (1938). That appendix includes cases that begin in the year 1877 and end
in 1938. The vast majority of cases cited are not, however, considered modern substantive due
process cases. They include procedural due process cases, jurisdiction and service of process
cases, equal protection cases, and First Amendment cases. The majority of the cases are rate
review, tax, and utility cases. Based on the book's one-line descriptions, I counted 108 utility rate
or tax cases, twenty-nine equal protection cases, and twenty-five procedural due process cases
2009] A TALE OF TWO LOCHNERS
This disconnect between the facts of Progressive Era regulation and the
strong-rights story of Lochner has important consequences both for
constitutional historiography and the history of Lochner itself. For the past
decade and more, "revisionist" historians and legal scholars have ravaged 2 1 the
(including cases about service of process, jurisdiction, presumptions, confessions, among them
Pennoyer v. Neff, 95 U.S. 714 (1877)). There were also several antitrust and first amendment
cases and a few classic takings cases. Based on this review, I would estimate that there are less
than thirty cases on the list that we think of as truly "substantive" due process cases-and the list
extends over a sixty-one-year period.
This finding is consistent with more detailed empirical studies of the period. For example, in
1913, Charles Warren found that of 560 cases invoking the Due Process Clause, in "only two
cases (other than the Lochner Case)," had the Court struck down "social justice" legislation.
Charles Warren, The Progressiveness of the United States Supreme Court, 13 COLUM. L. REV.
294, 295 (1913). A "later Warren study, based on the years 1889-1918, found that of the 422
Supreme Court cases involving Fourteenth Amendment due process or equal protection challenges
during that period, in only 53 did the Court strike down the challenged regulation. Of the 53, only
14 concerned legislation affecting the general rights of individuals." Michael J. Phillips, The
Progressivenessof the Lochner Court, 75 DENY. U. L. REV. 453, 454 n.8 (1998). More modem
empirical studies state that "the Lochner Court rejected considerably more substantive due process
claims than it granted." Id. at 489; see also studies cited infra note 22.
One way of resolving this tension between the textbook story and empirical studies is to
understand that these figures count different kinds of cases over different periods of time
(including the Taft court, as does Phillips, for example, surely increases the numbers of
regulations struck down). More importantly, the "two hundred" figure likely includes a large
number of decisions that look, to modem eyes, far different from today's fundamental rights
cases. For example, the Supreme Court in this era reviewed the reasonableness of utility rates
under the Due Process Clause. The Court heard a vast number of these cases. See CHRISTOPHER
WOLFE, THE RISE OF MODERN JUDICIAL REVIEW 151 (1986) (noting that the Court of this era was
a "kind of Super-Railroad-Rate-Commission"). Phillips's empirical study shows that the rate cases
along with other kinds of cases involving railroads and utilities, taxes and business entry
restrictions-cases that many today would not associate with fundamental rights-constituted a
significant number of statutes struck down. Phillips, supra, at 466, 468, 470, 473, 484 (discussing
how the Court struck down forty-two utility orders, five laws on railroad damages, eight tax rules,
and seven entry restrictions under substantive due process); see also id. at 488-89 (finding that if
one eliminates these kind of decisions and sticks to "general police matters, regulation of business
and trade, and employment law," the ratio of decisions upholding the law to decisions striking it
down "exceedsfive to one") (emphasis added). As Phillips notes, over 40 percent of the decisions
in his sample involved price-fixing or rate-making. Id. at 498.
20. Legal historians generally believe that the "outside" of society (the "extemalist"
approach) has shaped the "inside" of law (the "intemalist" approach). But if this history is correct,
we can see how this causal relationship may actually operate in reverse: how the "inside" of law
and even legal theory affects how lawyers (and even historians) view the "outside" of history. See
Robert W. Gordon, Introduction:J. Willard Hurst and the Common Law Tradition in American
Legal Historiography, 10 LAW & Soc'y REV. 9, 11-12 (1975) [hereinafter Gordon, J. Willard
Hurst] (distinguishing the internal and external views); see also Robert W. Gordon, CriticalLegal
Histories, 36 STAN. L. REV. 57 (1984) (explicating this distinction in the context of the challenge
of critical legal studies). The classic exponent of the externalist view was WILLARD HURST, LAW
AND THE CONDITIONS OF FREEDOM (1956). See infra Part IV for further discussion on this point.
21. For an overview of the debate between the standard view and those historians who seek
to revise that view ("the revisionists"), see Bernstein, supra note 3 (arguing that the standard story
is outmoded); Paul Kens, Lochner v. New York Tradition or Change in Constitutional Law, I
N.Y.U. J.L. & LIBERTY 404 (2005) (summarizing the revisionism); Gary D. Rowe, Lochner
Revisionism Revisited, 24 LAW & Soc. INQUIRY 221, 222 (1999) (calling revisionist
reinterpretations of Lochner a "seismic interpretive shift"). Revisionism hails from a variety of
conventional Lochner story. They argue that the period was not as anti-
regulatory or pro-business as claimed, 22 that courts did not use the concept of
substantive due process now used conventionally to describe the period,23 and
that there is no convincing evidence that Lochner-erajudges were motivated by
economic self-interest rather than a sincere motive to protect liberty or even
equal ity24 In the face of this revisionist onslaught, some stalwart counter-
revisionists have stood by the standard Lochner story as a traumatic reminder
25
of politicized judicial review.
works by historians examining the Gilded Age. See Stephen A. Siegel, The Revision Thickens, 20
LAW & HIST. REV. 631 (2002).
22. PAUL KENS, JUDICIAL POWER AND REFORM POLITICS: THE ANATOMY OF LOCHNER v.
NEw YORK 4 (1990) ("Historians have pointed out that more regulatory statutes ... were upheld
than were overruled during the first thirty years of this century."); Friedman, supra note 3, at 1386
n.9 (stating that "[m]ost of the recent revisionist effort focuses on dispelling the notion that the
Supreme Court represented a mere appendage of corporate America"); Stephen A. Siegel, Let Us
Now PraiseInfamous Men, 73 TEX. L. REV. 661, 686 (1995) (stating that "old historiography"
presents Lochner court justices "as advocates of business enterprise" while the "new presents
them all as protectors of liberty"); see also Michael Les Benedict, Laissez-Faire and Liberty: A
Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism, 3 LAW & HIST.
REV. 293, 293, 311 (1985) (challenging the "orthodox view" that "the major value of the Court..
•was the protection of the business community against government" and arguing that the purpose
of the decisions was not to protect the property of the "rich from the ravages of the poor," but to
"preserve liberty"); Bernstein, supra note 16 (rejecting the view that the Supreme Court struck
down common law rules favoring business); Phillips, supra note 19 (arguing that the Court upheld
far more business regulation than it struck down); Melvin I. Urofsky, Myth and Reality: The
Supreme Court and Protective Legislation in the Progressive Era, 1983 SuP. CT. HIST. Soc'Y
Y.B. 53 (1983) (same).
23. G. Edward White, Revisiting Substantive Due Process and Holmes's Lochner Dissent,
63 BROOK. L. REV. 87, 88-89 (1997) (arguing that the concept of substantive due process is
anachronistic, as it was not used by courts). In fact, the question whether due process was a
substantive or procedural limitation was debated by law review commentators. See, e.g., Hugh
Evander Willis, Due Processof Law Under the United States Constitution, 74 U. PA. L. REV. 33 1,
332 (1926) (asking the question whether due process applies to "substantive law or only to legal
procedure"). Professors White and Ely are correct that it was not a judicial term of art until much
later. See James W. Ely, Jr., The Oxymoron Reconsidered: Myth and Reality in the Origins of
Substantive Due Process, 16 CONST. COMMENT. 319 (1999); see also White, supra, at 88-89.
24. See, e.g., Ely, supra note 23, at 318 (criticizing the "long-outdated Progressive
historiographical view of the courts at the turn of the century as bastions of laissez-faire"). For the
claim that the Court sought liberty, see Fiss, supra note 10, at 18-19. For the claim that it sought to
enforce equality through the idea of class legislation, see GILLMAN, supra note 11, at 1. For work
attacking the notion that laissez-faire judges were motivated by self-interest, see Charles W.
McCurdy, The Roots of "Liberty of Contract" Reconsidered: Major Premises in the Law of
Employment, 1867-1937, 1984 SUP. CT. HIST. Y.B. 20, 24 (1984). See also LOREN BETH, THE
DEVELOPMENT OF THE AMERICAN CONSTITUTION 1877-1917 (1971) (rejecting notion that court
actually implemented laissez-faire views); Alan Jones, Thomas M. Cooley and "Laissez-Faire
Constitutionalism": A Reconsideration,53 J. AM. HIST. 751 (1967) (examining assumption that
American constitutional law focused on property rights). On the changing historiography of this
period, see Felice Batlan, A Reevaluation of the New York Court of Appeals: The Home, the
Market, and Labor, 1885-1905, 27 LAW & Soc. INQUIRY 489, 490-91 (2002).
25. By counter-revisionist, I refer to those who have rejected attempts to rehabilitate
Lochner as sound non-politicized doctrine. See Friedman, supra note 3; Paul Kens, Lochner v.
New York: Rehabilitatedand Revised, but Still Reviled, 1995 J. SUP. CT. HIST. 31, 32.
Both revisionists and their opponents have been performing the grand old
debates of yesteryear, playing Dean Pound against Professor Warren.
Revisionists contend that "law" decided Lochner, while counter-revisionists
claim that the "law" was really politics. None of this work has challenged the
conception of right prevalent in the legal doctrine of the past, nor unearthed the
popular constitutionalist history of Lochner, because academics have
mistakenly assumed that caselaw is either law or it is politics, as if these
activities do not occur simultaneously in real life. As we will see, the claim that
Lochner is politics does not rest upon the 1905 law of substantive due process,
but on Teddy Roosevelt's political opposition to Lochner's result. Today's
standard Lochner story is Roosevelt's story; it is not Justice Peckham's
majority story or Justice Harlan's dissenting story.
There is more at stake here than debates among historians or a few law
professors. At stake is a contemporary public debate about substantive due
process and the nature of fundamental rights. If this history is correct, one does
not need to accept Lochner to accept Roe or any of Lochner's supposed
children, for Lochner could have no children after 1937. The modem doctrinal
notion of right-as-trump emerged in the wake of the court-packing debate and
as a response to fears of fascism.26 Thus, Lochner has nothing to say about the
rights aspects of Roe or Griswold,27 for the notion of substantive due process in
these modem decisions simply did not exist when Lochner was decided. Do not
mistake the argument: Roe and Griswold may be wrong, but they are not wrong
because they repeat the Lochnerian notion of right.
28
If strong doctrinal rights can be traced to our fight against fascism,
rather than the dream of laissez-faire, then perhaps we need to rethink our fears
of strong rights. Perhaps we should remember that it was not the Warren
court's "hippy generation," but rather World War II's "greatest generation,"
which led the Court to apply strong rights of speech and religion to the states
through the Due Process Clause-a "substantive" use of that clause that we
now take for granted and even celebrate. In this process of forgetting, we have
also lost early-twentieth-century ideas of right, such as public right, whose
purpose was to legitimate acts for the common benefit.
In Part I, I set out briefly the debate between revisionist and counter-
revisionist accounts of Lochner. In Part II, I challenge both accounts,
presenting the "democratic detail" 29 that shows how the average professional
26. For an explanation of the historical development noted in the text, see NOURSE, supra
note 18, at ch. 7.
27. Roe v. Wade, 410 U.S. 113 (1973); Griswold v. Connecticut, 381 U.S. 479 (1965). The
skeptic will say that Lochner must have something to say about these decisions because of the so-
called countermajoritarian difficulty, but that assumes the very strong notion of right I dispute
here. For a discussion of this point, see infra Part IV.D.
28. See NoURSE, supra note 18, at ch. 7; see also RICHARD A. PRIMUS, THE AMERICAN
LANGUAGE OF RIGHTS (1999) (dating this development later, but agreeing with its premise).
29. Bob Gordon once termed Willard Hurst's work in law as focused on "democratic
discourse used the term "right" very differently from the current notion of
right-as-trump. In Part III, I tell the untold story of how Theodore Roosevelt
made Lochner famous as the "Bakeshop Case." In Part IV, I consider the
implications of this history for new legal realist approaches to constitutional
historiography, theories of popular constitutionalism, and the future of
substantive due process.
I
BACKGROUND
"All rights tend to declare themselves absolute to their logical extreme.

Yet all in fact are limited by the neighborhood of principles of policy
which are other than those on which the particular right is founded,
and which become strong enough to hold their own when a certain
point is reached. The limits set to property by other public interests
present themselves
30
as a branch of what is called the police power of
the State."
Justice Oliver Wendell Holmes (1908)
Critiques of Lochner abound. Traditionally, Lochner has been associated,

rightly or wrongly, with everything retrograde and wrong in constitutional law,
from formalism to anti-regulation to the creation of unenumerated rights. In the
past twenty years, however, a different story has emerged in libertarian
scholarship claiming Lochner represents precisely the opposite proposition: a
halcyon day of strong rights, 31 an important foreboding of laissez-faire
principles and skepticism about big government. Whether critics or proponents,
commentators engaged in the Lochner debate share the view that "the Court
exceeded its legitimate judicial role by reading the right of 'liberty of contract'
into the Fourteenth Amendment's 32
Due Process Clause, despite the absence of
textual support for this right."
This argument grounds the famous equation of Lochner with Roe v.
Wade,33 on the theory that both cases were misplaced substantive due process
decisions creating fundamental rights out of whole cloth. This view took on
public status when Judge Bork argued that Lochner proved the impropriety of
the Warren Court's judicial activism, dubbing substantive due process a
"momentous sham" that had been used "countless times" by judges to "write
detail" and it is in that spirit that I approach this discussion, looking not at how the mandarin
academics described the law, but how the lowly practitioner might see it. Gordon, J. Willard
Hurst,supra note 20, at 5 1.
30. Hudson County Water Co. v. McCarter, 209 U.S. 349, 355 (1908).
31. See, e.g., Bernstein, supra note 3; Epstein, supra note 2.
32. Bernstein, supranote 16, at 3-4.
33. Ely, supra note 2, at 939-40; see also JOHN HART ELY, DEMOCRACY AND DISTRUST: A
THEORY OF JUDICIAL REVIEW 14-21 (1980) (criticizing the Lochner-era Court's departure from
the Constitution's text).
their personal beliefs into" the Constitution. 34 Others, such as Richard Epstein,
have argued that Lochner was in fact correct to embrace a strong notion of
property rights. 35 Those who disagree, like Barry Friedman, nevertheless
assume that Lochner was representative of a day in which rights discourse was
used in a strong countermajoritarian fashion. 36 In short, although disagreement
remains about whether this strong rights framework is vice or virtue, academics
widely assume that Lochner symbolizes an entire era37full of cases striking
down legislation in the name of protecting strong rights.
Of course, this is not the only ground on which scholars debate Lochner.
Lochner has now moved beyond canonical status to oracular heights; it is
deemed essential fodder for all constitutional theories and theorists, not to
mention theorists of economy and regulation, and perhaps law itself. Cass
34. ROBERT H. BORK, THE TEMPTING OF AMERICA 36-49 (1990) (arguing that the Court
had no authority under the Constitution to invalidate economic legislation under the Due Process
Clause).
35. Epstein, supra note 2, at 13-15 (arguing that the Court was wrong to abandon Lochner
during the New Deal period); see also BERNARD H. SIEGAN, ECONOMIC LIBERTIES AND THE
CONSTITUTION 110-21 (1st ed. 1980) (defending Lochner); Michael J. Phillips, Entry Restrictions
in the Lochner Court, 4 GEO. MASON L. REV. 405, 454-55 (1996) (embracing Lochnerian
decisions prohibiting monopolization of certain occupations); Note, Resurrecting Economic
Rights: The Doctrine of Economic Due Process Reconsidered, 103 HARV. L. REV. 1363, 1364
(1990) (calling for a revival of Lochnerian jurisprudence). See generally James W. Ely, Jr.,
Melville W. Fuller, 1998 J. SuP. CT. HIST. 35, 41-46 (defending Lochner and other controversial
Fuller Court decisions as forward-looking and consistent with contemporary public opinion and
political economy).
36. Friedman, supra note 3.
37. See, e.g., Bernstein, supra note 3, at 12 ("[T]he basic motivation for Lochnerian
jurisprudence was the Justices' belief that Americans had fundamental unenumerated
constitutional rights."); Friedman, supra note 3, at 1403 ("[T]he tool for judicial usurpation was
the (mis)reading into the Constitution of rights not clearly set out there, such as the liberty of
contract ....").Barry Friedman, relying on Richard Fallon, id. at 1416, argues that right and
power are logically entailed by each other. But this assumes the very idea of right-the modem
notion of right-that I am calling into question. Right and power are only logically correlated in a
world where there is a strong notion of right-where right connotes strict scrutiny. If claims of
right can be defeated in the vast majority of cases by the common welfare, then this apparently
"logical" equation fails. The strength of the right does not depend upon the number of times it is
claimed or even the number of times that it succeeds but in its relation to the public welfare; when
lawyers talk about strong rights today, they mean rights that provoke "strict scrutiny," not rights
that provoke something like rational basis. Friedman and Fallon's views reflect the general
"liberal" theory of right asserted in modem jurisprudence, a view that tends to view ights in
negative and absolutist terms, rather than positive or public terms. As Robin West has asserted,
however, "[t]he notion of a positive right . . . is by no means oxymoronic." Robin West,
Introduction: Revitalizing Rights, in RIGHTS xix (Robin West ed., 2001). The idea of right has not
remained fixed in constitutional doctrine or theory over the past two hundred years. See Harry N.
Scheiber, Public Rights and the Rule of Law in American Legal History, 71 CALIF. L. REV.217,
219 (1984) (emphasizing the "positive notions of public rights" that pervaded nineteenth century
constitutional law: "American courts have been concerned, historically, to forge a set of precepts
that ... would take account of what the public ... has a right to claim of its government."). As
Wesley Hohfeld famously noted, "the word 'right' is used... indiscriminately to denote any sort
of legal advantage, whether claim, privilege, power, or immunity." Wesley Newcomb Hohfeld,
FundamentalLegal Conceptions As Applied in JudicialReasoning, 26 YALE L.J. 710, 717 (1917).
Sunstein argued that Lochner failed to distinguish between action and

inaction. 38 G. Edward White and Howard Gillman, in an effort to challenge
political science's reigning attitudinal model's contempt for legal doctrine,
have attempted to rehabilitate Lochner as a reflection of "class legislation" or
equality ideals. 39 Bruce Ackerman, in his theory of constitutional moments,
wrote that Lochner served a properly preservationist function. 40 Owen Fiss
argued eloquently that the problem was not the role that the Court assumed in
enforcing rights, but rather the Court's enforcement of the wrong right. 41 David
Strauss, in restrained fashion, has claimed that the problem was 42
not the right to
contract but the Court's lack of humility in applying that right.
In this Article, I do not aim to attack any or all of these theories. 43 Rather,
I challenge the assumptions upon which much of this debate has proceeded:
that Lochner was wrong because it resurrected an improper notion of right.
That assumption is shared by both revisionists, who have tried to rehabilitate
the law as doctrinally coherent, and counter-revisionists, who insist that
Lochner reflected bare-knuckle politics. My argument is that those who either
condemn or embrace Lochner share a presentism about the past nature of
fundamental rights.44 The traditional view of Lochner as a rights case is driven
more by the present's need to justify contemporary rights discourse (and, in
particular, Roe v. Wade) than by the past's understanding of right.
38. Sunstein, supra note 12, at 878.

39. White, supra note 23, at 104-05; see also GILLMAN, supra note 11. In this Article, I
leave to the side the question of class legislation, which is treated elsewhere. See V.F. Nourse &
Sarah Maguire, The Lost History of Governance and Equal Protection, 58 DUKE L.J. 955 (2009)
(rejecting Howard Gillman and others' claims that class legislation explains the Lochner-era cases
associated with substantive due process).
40. BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS 269 (1998).
41. Fiss, supra note 10, at 1888-1910.
42. David A. Strauss, Why Was Lochner Wrong?, 70 U. CHI. L. REV. 373, 375 (2003).
43. I do agree that the revisionists have done us a service in eliminating certain
explanations that are clearly overbroad. For example, David Bernstein is correct that the Court
was not always hostile to changes in all common law doctrine, even if the theory of the police
power is in fact thoroughly imbued with and dependent upon the common law. See Bernstein,
supra note 16, at 3-4. Bernstein and others are also correct that the Court's doctrine cannot be
irretrievably described as anti-redistributive. As Charles Warren showed at the time, the Lochner
Court did not attempt to enforce anything like a night-watchman state, and empirical and historical
studies from the right and the left have since supported that proposition. See supra note 19; Ray A.
Brown, Due Process of Law, Police Power, and the Supreme Court, 40 HARV. L. REv. 943, 944-
45 (1927); Urofsky, supra note 22; Melvin I. Urofsky, State Courts and Protective Legislation
During the ProgressiveEra: A Reevaluation, 72 J. AM. HIST. 63, 64 (1985); see also Gordon,
supra note 8; BETH, supra note 24, at 190.
44. It does not follow from my attack on the conventional notion of the "rights" discourse
that other doctrine of this era might not be labeled as conservative or laissez-faire. The doctrinal
basis for such a claim, however, must be much broader than rights and substantive due process. As
Owen Fiss's history shows, on a constellation of legal claims, from decisions about tax to ones
about antitrust and, perhaps most importantly, to the Commerce Clause, the Court struggled with
the great issues of industrialization in ways that today appear decidedly illiberal. Fiss, supra note
10.
My claim is that the legal rights discourse of the Lochner period was not
what we assume it to be today. The strong rights we know today-the rights we
associate with strict scrutiny and compelling state interests-first emerged in
the period from 1937 to 1943, as a response to Franklin Roosevelt's court-
packing plan and the Court's attempt to rehabilitate itself and address the grave
wrongs of fascism that were so evident in the period before World War II. In
Marbury-like fashion, the Court weakened itself in one area (economic
legislation) only to assert itself elsewhere (speech, religion, and race).45 In this
period, the Due Process Clause was used to apply strong rights to the states-
rights subject to strict scrutiny-raising the great questions about rights that we
debate today.46
I
THE FORGOTTEN JURISTIC STORY
"The guaranties of life, liberty and property contained in the Federal

and State Constitutions are not absolute; for all private rights, however
fundamental, are enjoyed by individuals as members of organized
society, and subject to the paramount right of the state, the
embodiment of society, to appropriate or modify them ' 47 when actual
necessity or the public welfare requires such a course.
Lucius Polk McGehee (1906)
To understand the forgotten constitutional discourse of the early twentieth

century, one must begin with power, 48 not right. The professional lawyer of the
day believed that almost everything in constitutional law depended upon
power-the "police power," that is. As Walter Wheeler Cook (in a pre-realist
moment) explained, "a work which undertakes to deal with the whole of the
police power must approach very closely.., the whole subject of constitutional
law. . ... ,,49 Harvard's Ernst Freund similarly wrote, "The term police power..
• [is] indispensable in the vocabulary of American constitutional law .... "50
The rule was rather simple: "In every case . . . where the protection of the
Federal Constitution is sought, the question necessarily arises: Is this a fair,
45. See, e.g., United States v. Carolene Prods. Co., 304 U.S. 144 (1938) (upholding
economic regulation under a minimal standard of review); id. at 153 n.4 (suggesting a more
intensive review for cases involving speech, religion, and race).
46. NOURSE, supra note 18, at ch. 9; see also PRIMus, supra note 28 (dating this
development later, but agreeing at least in part with its premise).
47. MCGEHEE, supra note 16, at 201.
48. ERNST FREUND, THE POLICE POWER 15 (1904) ("It thus becomes a requirement of the
constitution that every statute should be the exercise of some recognised power justified by the
reason and purpose of government. In order to ascertain whether legislation is constitutional or
not, we must analyse the powers of government and define the nature of each.").
49. Walter Wheeler Cook, What Is the Police Power?, 7 COLUM. L. REV. 322, 332 (1907).
50. FREUND, supra note 48, at iii.
reasonable, and appropriate exercise of the policepower of the State... ?,,51 So

states the opinion in Lochner v. New York.52
The question in Lochner was not the scope of the right to contract, or even
whether the right triggered a particular kind of scrutiny, but whether the state
had the police power to regulate the right. If a regulation were within the police
power, the case ended. In theory, a government of limited powers did not need
to enumerate rights at all. Rights were residual, the "leftovers" beyond the
limits of power. In this sense, rights were not textual, because to consider them
textual was to belittle them. Rather, they were held by the people prior to, and
did not depend upon, textual instantiation. The constitutional discourse of the
day was for the most part not clause-bound, because53
it operated on a premise
that began with the limits on government power.
The police power applied to matters of due process, equal protection and a
variety of other constitutional provisions. It was defined as a governmental
purpose to serve the general safety, health, and welfare: "the police power...
not only . . . preserv[es] the order, peace, health, morals, and safety of the
community, but also all legislation looking to the well being of society in its
economic and intellectual aspects." 54 This was stated in the most serious of
terms:
The first right of a State, as of a man, is self-protection, and with the
State that right involves the universally acknowledged power and duty
to enact and enforce all such laws . . . as may rightly be deemed
necessary or expedient 55
for the safety, health, morals, comfort and
welfare of its people.
This understanding reflects an important but forgotten aspect of the police
power: its association with "public right." 56 Today, this seems odd because we
associate rights with individuals, not communities; indeed, we associate rights
with claims against-rather than by-the polity. This notion of public right was
analogized specifically to the right of self-defense: just like an individual, the
state could, on behalf of the community, defend its interests against the harms
51. Lochner v. New York, 198 U.S. 45, 56 (1905) (emphasis added).
52. Id.
53. Fiss, supra note 10, at 85 (arguing that almost all of the most important cases of the
day, including Lochner, did not depend upon an "exercise of clause-parsing"); see also infra notes
61, 62 and accompanying text.
54. McGEHEE, supra note 16, at 301.
55. Knoxville Iron Co. v. Harbison, 183 U.S. 13, 20 (1901) (quoting judgment below on
the "first right of a State"); id. at 22 (holding that the right to contract is not absolute). As I have
emphasized, due process included an equality component at the time.
56. The notion of a public right was not unusual: the police power was sometimes
described as the "paramount right" of the state. McGEHEE, supra note 16, at 201 (noting that all
rights are "subject to the paramount right of the state" to act for the common welfare). As Dean
Pound would put it, the problem was not rights simpliciter, it was an individualist conception of
justice that exaggerated "private right at the expense of public right." Pound, supra note 16, at
457. See generally Scheiber, supra note 37, at 217 (emphasizing the importance of the notion of
"public rights" in legal history).
caused by the abuse of individual rights. 57 Based on this analogy, the police
power was so central to the law of the Constitution that it was "essential to the
very being of the State." 58 This was clearly a form of common law
constitutionalism, 59 since constitutional law was quite literally formed out of
common law analogies.
As Owen Fiss has acknowledged, for the Justices of the late nineteenth
and the early twentieth centuries, "constitutional interpretation was not an
exercise in clause-parsing." 60 This was "apparent in almost every major case of
the period, including Lochner."61 I would go further and suggest that it was not
interpretive at all in the modem sense. 62 Interpretation assumes a textualist
view of the Constitution; but the police power-the most ubiquitous concept in
constitutional analysis during this period-had no textual basis. Because the
police power did not depend upon clause-parsing, it never demanded
interpretation of texts.63 Indeed, one scholar of the day went so far as to say that
57. W.P. PRENTICE, POLICE POWERS ARISING UNDER THE LAW OF OVERRULING
NECESSITY 4 (1894).
58. Id.at 301.
59. David A. Strauss, Common Law ConstitutionalInterpretation, 63 U. CHI. L. REV. 877,
884-91 (1996) (defending an idea of constitutionalism that is less focused on the text or structure
of the Constitution than the Court's own precedents, a common law form of decisionmaking).
60. Fiss, supra note 10, at 85.
61. Id.; see also id. at 182 ("In their era, the process of constitutional interpretation was not
...one of parsing the language of some particular provision of the Constitution.. . [N]o special
effort was made to distinguish one particular clause of [the Fourteenth] amendment from another.
Lochner was written in a similar spirit.... The Due Process Clause was identified ...but there
was no pretense ... that the result flowed from an interpretation of the 'the word liberty'. . . . The
result flowed instead from a general conception of state authority. Holmes's proffered substitute
was equally general and equally without roots in the words of the Constitution.").
62. Gilded Age constitutional theory held no particular regard for the text. See, e.g.,
CHRISTOPHER TIEDEMAN, THE UNWRITTEN CONSTITUTION OF THE UNITED STATES: A
PHILOSOPHICAL INQUIRY INTO THE FUNDAMENTALS OF AMERICAN CONSTITUTIONAL LAW 155
(1890) (urging courts not to rely upon "plain, exact, and explicit" constitutional texts but
constitutional "generalities"); id. at 151 (arguing that a judge "need not concern himself so much
with the intentions of the framers of the Constitution or a statute," but instead should "find out
what the possessors of political power now mean by the written word."). This view was applied,
by some, to the text and enumerated rights themselves. FRANCIS NEWTON THORPE, A
CONSTITUTIONAL HISTORY OF THE AMERICAN PEOPLE 64 (1898) (stating that the rights
guaranteed in the Constitution's Bill of Rights were but generalities and "administrative measures"
which were largely superfluous to the people's actions and understandings of their rights); Lucius
POLK McGEHEE, DUE PROCESS OF LAW UNDER THE FEDERAL CONSTITUTION 43 (1906) (stating
that even enumerated rights were not important because of their text but were "preexisting and
fundamental, not created by nor dependent on the Constitution"); Kunal M. Parker, Context in
History and Law: A Study of the Late Nineteenth-CenturyAmerican Jurisprudenceof Custom, 24
LAW & HIST. REV. 473, 512 (2006) (noting Tiedeman's "refreshingly cavalier attitude toward the
integrity of textual language").
63. This anti-textualism applied to the Fourteenth Amendment itself: "The object of the
Fourteenth Amendment, as has been declared in repeated decisions, is not to confer the rights
enumerated in its first section directly on any one, but to guarantee all citizens or persons against
being deprived of those rights by State action. The enumerated rights are recognized as
preexisting andfundamental, not created by nor dependent on the Constitution ...... McGEHEE,
supra note 16, at 43 (emphasis added).
CALIFORNIA LAW REVIEW (Vol. 97:751
the common law method had "saved our jurisprudence" from the speculative
evils of the "enumeration of 'inalienable rights." '64 At least in some quarters,
65
enumeration was considered a positive evil or at least irrelevant,
66
rather than
the apparently self-evident good it is portrayed as today.
A. The PolicePower in the Non-Mandarin Case

Understanding juristic discourse on the police power requires ignoring the
mandarin texts and focusing on the more mundane, professional consensus.
Consider a standard regulatory challenge 67 decided in 1905, the same year as
Lochner. In Manigault v. Springs,68 the state wanted to build a dam, but owners
of the land claimed that it interfered with their property rights. The Court easily
disposed of the rights claim: "[T]he police power, is an exercise of the
sovereign right of the Government to protect the lives, health, morals, comfort
and general welfare of the people, and is paramount to any rights under
contracts between individuals." 69 The dam's interference with preexisting
rights was no bar. The Court cited familiar instances of the common welfare
trumping property rights, such as "where parties enter into contracts, perfectly
lawful at the time, to sell liquor, operate a brewery or distillery, or carry on a
lottery, all of which are subject to impairment by a change of policy on the70
part
of the State, prohibiting the establishment or continuance of such traffic.
Notice that the Court explained the police power as "paramount to any
rights under contracts between individuals.", 71 This is an unusual expression for
modern jurisprudence since it reflects the opposite of our modem notion that
rights are "paramount" to the common welfare, not subject to it. However, this
was the normal usage at the time. As Ernst Freund explained, "The police
power is the power to restrain common rights of liberty or property." 72 It
emerged from nineteenth century cases like Crowley v. Christiansen, which
upheld the state regulation of liquor.73 There, Justice Field (otherwise
64. Id. at 139.

65. Even those scholars who, in the 1920s, sought to support substantive elements of due
process did not depend so much on unenumerated rights as on expanding various parts of the
substantive due process case law, such as the "public purpose" limitation on the regulation of
business. See RODNEY L. MOTT,DUE PROCESS OF LAW ch. 22 (1926).
66. See ANTONIN SCALIA ET AL., A MATTER OF INTERPRETATION: FEDERAL COURTS AND
THE LAW (1997).
67. Manigault v. Springs, 199 U.S. 473 (1905).
68. See McGEHEE, supra note 16, at 300 (citing Manigault as a classic police power case
of the period).
69. Manigault, 199 U.S. at 480 (emphasis added).
70. Id.
71. Id.
72. FREUND, supra note 48, at 19 (distinguishing between rights that were common and
thus "fundamental," and those which may be breached by the state "as it pleases" without
"observing the limitations ... of the police power").
73. Crowley v. Christensen, 137 U.S. 86, 89 (1890).
remembered for his laissez-faire 74 views) emphatically asserted the

preeminence of the police power: "[T]he possession and enjoyment of all rights
are subject to such reasonable conditions as may be deemed ... essential to the
safety, health, peace, good order and morals of the community. Even liberty
itself, the greatest
'75
of all rights, is not unrestricted license to act according to
one's own will.
This discourse, which subjected rights to the police power, predated
Lochner. Consider, for example, the frequently cited Gundling v. Chicago,
decided in 1900. 76 The Court upheld a Chicago ordinance barring the sale of
cigarettes without a license because it did not "violate the Fourteenth
Amendment['s]" Due Process Clause: "Regulations respecting the pursuit of a
lawful trade or business are of very frequent occurrence . . . and what such
regulations shall be ... are questions for the state to determine ... within the
proper exercise of the police power." 77 The Court qualified its deference to the
police power only by a rule of arbitrariness: regulations within the police power
should be upheld "unless the regulations are so utterly unreasonable and
extravagant . . . that the property and personal rights of the citizen are
unnecessarily, and in a manner wholly arbitrary, interfered with or
78
destroyed., Citing Crowley v. Christiansen, the Court concluded that "the
possession and enjoyment of all rights are subject to such reasonable conditions
as may be deemed by the governing authority of the country 79 essential to the
safety, health, peace, good order and morals of the community."
As alluded to in Crowley, the police power discourse had a vast reach,
8
applying to everything from morals legislation to contract and property rules 0
74. Lawrence M. Friedman, Freedom of Contractand OccupationalLicensing 1890-1910:

A Legal and Social Study, 53 CALIF. L. REv. 487, 492 (1965) (noting Field's reputation as a "stem
prophet of individualism").
75. Crowley, 137 U.S. at 89 (1890) (upholding regulation of liquors); see also Marrs v.
City of Oxford, 32 F.2d 134 (8th Cir. 1929) (quoting same principle in upholding regulation of
oil).
76. Gundling v. City of Chi., 177 U.S. 183 (1900).
77. Id. at 188.
78. Id.
79. Id. This discourse pervaded state law as well. See, e.g., Williams v. State, 108 S.W.
838, 840 (Ark. 1908) ("It is a principle which underlies every reasonable exercise of the police
power that private rights must yield to the common welfare."); Am. Express Co. v. S. Ind. Express
Co., 78 N.E. 1021, 1028 (Ind. 1906) ("It has never been denied that in the exercise of the police
power property rights may be sacrificed, natural privileges curtailed, and liberty restricted or taken
away," said the court. "As the public peace, safety, and well-being are the very end and object of
free government, legislation which is necessary for the protection and furtherance of this object
cannot be defeated on the ground that it interferes with the common-law rights of some of the
citizens, or even deprives them of such rights."); State v. Heinemann, 49 N.W. 818 (Wis. 1891)
("All courts agree that the police power of the state extends to all regulations affecting the lives,
limbs, health, comfort, good order, morals, peace, and safety of society, and hence may be
exercised on many subjects and in numerous ways.").
80. Even one of the most famous property rights cases followed this logic. Pennsylvania
Coal Co. v. Mahon, 260 U.S. 393 (1922), is today studied as a "takings" case, and yet, when read
CALIFORNIA LAW REVIEW [Vol. 97:751
to legislative changes of common law rules. 8 1 In Chicago, Burlington & Quincy

R.R. Co. v. McGuire, the Court upheld a state's abrogation of the fellow servant
rule (which absolves an employer of liability if a "fellow servant" committed
the negligent act), explaining that the "freedom of contract is a qualified, and
not an absolute, right." 82 Quoting Frisbiev. United States, the Court elaborated:
It is within the undoubted power of government to restrain some
individuals from all contracts, as well as all individuals from some
contracts. It may deny to all the right to contract for the purchase or
sale of lottery tickets; to the minor the right to assume any obligations,
except for the necessaries of existence; to the common carrier the
power to make any contract releasing himself from negligence, and,
indeed, may restrain all engaged in any employment from any contract
83
in the course of that employment which is against public policy.
Finally, police power discourse appeared not only in right to contract
cases, but also in cases involving the right to property. Williams v. State,
decided by the Court in 1910, barred hotels from advertising on trains bound
for the then-important resort city of Hot Springs. 84 In the late nineteenth
century, anti-labor judges considered the right to carry on a calling one of the
highest forms of property right, stemming from the free labor agitation that
emerged out of the Civil War. 85 But until 1910, the Court neglected to consider
whether advertising was an essential attribute of that right. Instead, it invoked
in full it follows the pattern as identified in the text. The opinion aims to determine whether the
"police power" has been satisfied, id. at 413, and applies standard police power analytics, such as
a comparison with a "public nuisance." Id. It concludes that the "destruction" of the plaintiff's
property rights were justified by no "public interest." Id. at 414.
81. Some critics claim that, in the Lochner era, courts were hostile to statutes aiming to
change the common law. See Sunstein, supra note 12, at 878. As far as results are concerned,
these critics overclaim, as the Court upheld a variety of statutes abrogating common law rules,
most notably worker's compensation schemes. See Bernstein, supra note 16, at 3-4 (arguing
against Professor Sunstein's claim that the court was anti-common law); see also Ray A. Brown,
Police Power: Legislationfor Health and Safety, 42 HARV. L. REV. 866, 889-94 (1929) (detailing
the cases in which the Supreme Court had altered "common law rules of liability"); id. at 890 ("In
no line of cases, however, has the United States Supreme Court displayed greater liberality than in
the litigation respecting workmen's compensation legislation."). Nevertheless, the very idea of the
police power depended upon the common law notion of nuisance; so, in that sense, it is true that
the court's jurisprudence was pro-common law.
82. 219 U.S. 549, 567 (1911).
83. Id. (quoting Frisbie v. United States, 157 U.S. 160, 165-66 (1895)).
84. Williams v. State, 108 S.W. 838 (Ark. 1908).
85. William E. Forbath, The Ambiguities of Free Labor: Labor and the Law in the Gilded
Age, 1985 Wis. L. REV. 767, 769 (late nineteenth-century judges who struck down state labor laws
and the labor reformers who promoted them acted on behalf of a principle borrowed from anti-
slavery advocates, known as "free labor"). The view that men had a right to carry on a calling
persisted through the beginning of the twentieth century. See, e.g., MCGEHEE, supra note 16, at
141 ("Labor is the primary foundation of all wealth. The property which each one has in his own
labor is the common heritage. And, as an incident to the right to acquire other property, the liberty
to enter into contracts by which labor may be employed in such way as the laborer shall deem
most beneficial, and of others to employ such labor, is necessarily included in the constitutional
guaranty.").
the police power: "It is a principle which underlies every reasonable exercise of
the police power that private rights must yield to the common welfare." 6 Thus,
the Court consistently made the inquiry into the police power determinative of
the contours of rights.
B. Lochner and the JuristicStory

Once contextualized within the discursive conventions of the day,
Lochner becomes a case that merely acknowledges the rule we have
discovered: the police power can trump rights. Lochner begins, but in no way
ends, with a right: "The statute necessarily interferes with the right of contract
between the employer and employe[e]s, concerning the number of hours in
which the latter may labor in the bakery of the employer." 87 Had rights been
strong in the sense we understand them today, this would have concluded the
opinion; the right would have triggered strict scrutiny and the near-certitude of
the statute's demise. But the Lochner opinion goes on for twelve pages,
because it must rebut the juristic argument of the day that the statute was
intended to further the police power:
There are, however, certain powers, existing in the sovereignty of each
State in the Union, somewhat vaguely termed police powers, the exact
description and limitation of which have not been attempted by the
courts. Those powers, broadly stated and without, at present, any
attempt at a more specific limitation, relate to the safety, health, morals
and general welfare of the public. Both property and liberty are held
on such reasonable conditions as may be imposed by the governing
power of the State in the exercise of those powers, and with such
conditions the Fourteenth Amendment was not designed to interfere.
The State, therefore, has power to prevent the individualfrom making
certain kinds of contracts, and 88 in regard to them the Federal
Constitutionoffers no protection.
From there, the Court distinguishes as counterexamples cases in which the
police power had trumped rights: Holden v. Hardy, upholding the regulation of
the hours of miners; Knoxville Iron v. Harbison, permitting the regulation of
coal orders; Jacobson v. Massachusetts, upholding a vaccination ordinance;
and Petit v. Minnesota, affirming a Sunday-closing law. 89 The Court
summarized: "In every case that comes before this court, therefore, where
legislation of this character is concerned and where the protection of the
Federal Constitution is sought, the question necessarily arises: Is this a fair,
reasonableand appropriateexercise of the police power of the State... ?"90
86. Williams v. Arkansas, 217 U.S. 79, 90(1910).

87. Lochner v. New York, 198 U.S. 45, 53 (1905).
88. Id. (citation omitted) (emphasis added).
89. Jacobson v. Massachusetts, 197 U.S. 11 (1905); Knoxville Iron Co. v. Harbison, 183
U.S. 13 (1901); Petit v. Minnesota, 177 U.S. 164 (1900); Holden v. Hardy, 169 U.S. 366 (1898).
90. Lochner, 198 U.S. at 56 (emphasis added).
The answer to that question depended upon a categorical judgment that

seems odd today, but had more meaning then. The legal architecture of the late
nineteenth century, which survived at least in part in the early twentieth, aimed
to transcend politics through a highly categorical approach. 9' The law in
Lochner would have, and in many views of the day, should have, been upheld
as a proper exercise of the police power. However, the Court considered it a
"labor law" masquerading as a health law, and thus outside the accepted
categories of safety, health, and welfare. At the time, the Court construed labor
laws as a discrete category--one that connoted partiality. Today, labor has lost
the taint of violence, monopoly, and socialism with which it was once
associated. 92 At that time, elites (including progressives) feared labor as the
preeminent selfish interest group that sought, as Theodore Roosevelt warned, to
foist upon the country a view of class-against-class 93 alien to notions of
democracy. 94 Only in this context does it make sense for the Court to conclude
that
[v]iewed in light of a purely labor law, with no reference whatever to
the question of health, we think that a law like the one before us
involves neither safety, the morals nor the welfare of the public, and
that the interest
95
of the public is not in the slightest degree affected by
such an act.
Even in dissent, Justice Harlan argued from a categorical framework, rejecting
the majority's view by claiming that the regulation was in fact 96not a labor law
exempt from the police power, but a health law falling within it.
None of the cases that constitutionalists typically associate with
Lochner-such as Muller v. Oregon, Adair v. United States, or Coppage v.
Kansas-rejected the rule that the police power trumped right.97 Muller v.
91. See MORTON HORWITz, THE TRANSFORMATION OF AMERICAN LAW 1870-1960, at 15

(1992) ("The process of generalization and abstraction in late-nineteenth-century law was
identified with the goal of rendering private law more scientific and less political.").
92. See, e.g., Andrew A. Bruce, The Individualism of the Constitution, 62 CENT. L.J. 377,
382 (1906) ("They seem to think that interference is necessary in order that the public shall not be
driven to the extreme of demanding state socialism."); W.A. Counts, Laissez Faire in the United
States, 68 CENT. L.J. 118, 118 (1909) (quoting opponents of labor laws: "To place the working
classes under special protection against the aggression of capital ... is to change the government
from a government of freemen, to a paternal government or a despotism, which is the same
thing.").
93. The fear of "class" helps to explain the plausibility of Howard Gillman's thesis that
"class legislation" strongly influenced the development of the Due Process Clause, but this idea
cannot explain all of due process jurisprudence and makes no provision for the ways in which
class legislation approximated equal protection doctrine. GILLMAN, supra note 11, at 1; cf Nourse
& Maguire, supra note 39.
94. Roosevelt Advises Students, L.A. TIMES, June 15, 1906, at I1 (class against class).
95. Lochner v. New York, 198 U.S. 45, 57 (1905) (emphasis added).
96. Id. at 65-74 (Harlan, J., dissenting).
97. Coppage v. Kansas, 236 U.S. 1 (1915); Adair v. United States, 208 U.S. 161 (1908). If
there is a case that adopts language which is close to a strong right, it is Adkins v. Children 's
Hospital, 261 U.S. 525 (1923) (striking down the minimum wage for women), a case that emerged
Oregon upheld an hours law for women on the ground that the state had the
police power. 98 The Brandeis brief became famous precisely because it
persuaded the Court on the question of health categorization, thus adopting
Harlan's Lochner dissent. 99 No one denied that Muller retained a property right
in his business or that a contract right existed between the business and its
female employees-the question was whether these rights would have to yield
to the police power. As the Court put it, if the liberty of contract was well
settled, "it [was] equally well settled that this liberty is not absolute.., and that
a state may, without conflicting with the provisions of the 10014th Amendment,
restrict in many respects the individual's power of contract."
To be sure, Lochner was a shadow that hung over states' attempts to pass
hours laws 0 1-- one of the preeminent political goals of labor unions. However,
many constitutionalists believed that Lochner was at least implicitly overruled,
first by Muller, and then in 1917 by Bunting v. Oregon,10 2 in which the Court
let stand a more general hours limitation law. 10 3 By 1928, run-of-the-mill
commentators like the University of Wisconsin's Ray Brown could write that
the old "individualistic view" of the police power had long ago been replaced
with the "social principle, now fundamental in the concept of the police
power," that favored the interests of the whole society. 14 He even wrote that
when the Taft Court veered right after World War I. See discussion supra note 16 (discussing how
Adkins transformed Lochner).
98. Muller v. Oregon, 208 U.S. 412, 423 (1908).
99. See ALPHEUS THOMAS MASON, BRANDEIS: A FREE MAN'S LIFE 249-50 (1946) ("In
the Muller brief only two scant pages were given to conventional legal arguments. Over one
hundred pages were devoted to the new kind of evidence drawn from hundreds of reports ...
proving that long hours are as a matter offact dangerous to women's health, safety, and morals,
that short hours result in social and economic benefits.").
100. Muller v. Oregon, 208 U.S. 412,421(1908).
101. The Lochner language frequently quoted today by constitutionalists is the following:
"The act must have a more direct relation, as a means to an end, and the end itself must be
appropriate and legitimate, before an act can be held to be valid which interferes with the general
right of an individual to be free in his person and in his power to contract in relation to his own
labor." Lochner, 198 U.S. at 57-58. Even if taken as a general statement of the rule (which it was
not at the time), this at most amounts to a nod toward a rational-basis-plus standard akin to that
applied in City ofCleburne v. Cleburne Living Center, 473 U.S. 432 (1985). This standard is not
strict scrutiny, which requires something more than a "legitimate end," but at least a "compelling
state interest." Id. at 440-42.
102. Bunting v. Oregon, 243 U.S. 426 (1917).
103. See Francis. W. Bird, The Evolution of Due Process of Law in the Decisions of the
United States Supreme Court, 13 COLUM. L. REV. 37, 49 (1913) ("The Lochner Case has been
severely criticized, weakened very decidedly by the case sustaining the Oregon Statute limiting
the hours of labor for women; and is consequently of doubtful authority."); Charles Kellogg
Burdick, The Meaning of "Police Power", 214 N. AM. REV. 158, 162 (1921) ("[fIn 1917, the
Lochner case was in effect overruled, though not mentioned, when the Oregon ten-hour law was
upheld on the ground that excessive work by any person, in any field, is injurious to the individual
.... ); Collins Denny, Jr., The Growth and Development of the Police Power of the State, 20
MICH. L. REV. 173, 209 (1921) ("But in the case of Bunting v. Oregon the Lochner case, except
for unusual violations of liberty, was overthrown.").
104. Brown, supra note 81, at 877.
"[w]ith the exception of Lochner v. New York, the Supreme Court has
10 5
sustained every hours of labor statute presented to it."
To be sure, cases in which the hostility to labor seems palpable did in fact
exist. The two most often associated with Lochner were the "yellow dog"
cases, Coppage v. Kansas and Adair v. United States, 10 6 in which employers
dismissed employees because of their union membership. These cases were
widely debated in the world, but nothing in them rejects the idea that a right
could be trumped by the police power.1 7 As Justice Harlan acknowledged in
Adair: "Both property and liberty are held on such reasonable conditions as
may be imposed by the governing power of the State in the exercise of those
powers, and with such conditions [the Fourteenth Amendment] was not
designed to interfere."' 10 8 Quoting Jacobson v. Massachusetts, Harlan added:
In every well-ordered society, charged with the duty of conserving the
safety of its members, the rights of the individual in respect of his
liberty may, at times, under the pressure of great dangers, be subjected
to such restraint, to be enforced by reasonable regulations, as the safety
of the general public may demand.10 9
The discursive conventions of the day thus reveal that Lochner merely affirmed
the preexisting rule that the police power could trump rights.
105. Id. at 884 n.76.

106. See Coppage v. Kansas, 236 U.S. 1 (1915); Adair v. United States, 208 U.S. 161
(1908). There were other cases of far greater significance to labor at the time, such as the Danbury
Hatters Case, Loewe v. Lawlor, 208 U.S. 274 (1908), which barred secondary boycotts, and Traux
v. Corrigan, 257 U.S. 312 (1921), which upheld thousands of labor injunctions issued by the
lower courts. But constitutionalists today do not associate these cases with Lochner because they
were not decided primarily on grounds of right. For the significance of these cases to the labor
movement, see FORBATH, supra note 18; WILLIAM G. Ross, A MUTED FURY: POPULISTS,
PROGRESSIVES, AND LABOR UNIONS CONFRONT THE COURTS, 1890-1937 (1994). See also
discussion infra Part III (discussing the impact).
107. In Adair, 208 U.S. 161, the question was whether Congress could outlaw the yellow
dog contract for interstate carriers. Adair opens with a lengthy discussion of right, one more
insistent in some ways than Lochner itself, suggesting to a casual reader unfamiliar with the police
power that this is the end of the case. Of course, it cannot be under the given rules of the police
power. Adair complicates the police power by the fact that it was a federal case (the federal
government had no reserved police power), which explains why the Adair Court spent so much
time on the Commerce Clause. If the right had been sufficient in itself, however, none of the
discussion of power would have been necessary. Coppage, 236 U.S. at 15, followed Adair on the
question of right and then acknowledged that, although the state had the undoubted police power
to prohibit coercion and misrepresentation in contracts ("[w]e do not mean to say, therefore, that a
State may not properly exert its police power to prevent coercion on the part of employers towards
employe[e]s, or vice versa"), the actual facts of the case involved no coercion. Again, that analysis
would have been unnecessary if the right announced at the opening of the decision had been
enough to decide the case. In dissent, Justice Day argued that Kansas did in fact have the police
power to regulate: "nothing is better settled by the repeated decisions of this court than that the
right of contract is not absolute and unyielding, but is subject to limitation and restraint in the
interest of the public health, safety, and welfare, and such limitations may be declared in
legislation of the State." Id. at 28 (Day, J., dissenting).
108. Adair, 208 U.S. at 172.
109. Id.
C. Conventional Practicein the Lochner Era

By the mid-1920s, the "right of state legislatures or municipalities ... to
regulate trades and callings in the exercise of the police power [was] too well
settled [to require any extended discussion]." ' 10 In Rail & River Coal Co. v.
Yaple, decided in 1915, the Court appeared near exasperation: "This court has
so often affirmed the right of the State in the exercise of its police power to
place reasonable restraints like that here involved, upon the freedom of contract
that we need only refer to some of the cases in passing."'''1 By 1919, the rule
that the police power could trump rights to property and to contract needed no
citation. As the Court explained in Union Dry Goods v. Georgia Public Service
Corp.,
Except for the seriousness with which this claim has been asserted and
is now pursued ... the law with respect to it would be regarded as so
settled as not to merit further discussion. That private contract rights
must yield to the public welfare, where the latter is appropriately
declared and defined and the two conflict, has been often decided by
1 12
this court.'
The average treatise writer repeatedly restated the rule that the common
welfare could trump rights. For example, Professor Charles Burdick wrote:
This view, that all contracts between individuals are made subject to
the police power of the State, and that legislation enacted in the
reasonable exercise of that power, though it interferes with or excuses
the performance of contracts, does not unconstitutionally impair their
obligation,
3
has been constantly reiterated by the United States Supreme
Court. 11
Burdick emphasized that, although there had been some hostility to

legislation in the nineteenth century, "during the last generation the pendulum
has swung, and there has been an increasing demand for social legislation and
for regulation."' 14 He explained that the right to contract was no bar to such
legislation, quoting the Court's 1915 decision in Chicago & Alton R.R. v.
Tranbargerto support the proposition that all rights were subject to the police
power:
It is established by repeated decisions of this Court that neither of these
provisions of the Federal Constitution has the effect of overriding the
power of the state to establish all regulations reasonably necessary to
secure the health, safety, or general welfare of the community: that this
power can neither be abdicated nor bargained away, and is inalienable
110. Schmidinger v. City ofChi., 226 U.S. 578, 587 (1913).

111. 236 U.S. 338, 349 (1915).
112. 248 U.S. 372, 375 (1919).
113. CHARLES K. BURDICK, THE LAW OF THE AMERICAN CONSTITUTION § 197, at 473
(1922).
114. Id. § 196, at 469.
even by express grant; and that all contract and property rights are
115
held subject to itsfair exercise.
Burdick's emphatic observation that the police power could trump rights made
it perfectly clear that he and his colleagues considered the rule well-settled.
The police power would organize conventional constitutional juristic
discourse well into the 1930s and beyond. Even after it became more hostile to
progressive legislation in the 1920s,1 6 the Court went so far as to claim that
"the so-called police power is an inherent right on the part of the public umpire
to prevent misuses of property or rights which impair the health, safety, or
morals of others, or affect prejudicially the general public welfare." 117 Police
power analysis would, in the mid-1920s, not only support takings of property
115. Id. § 196, at 470 (quoting Chi. & Alton R.R. Co. v. Tranbarger, 238 U.S. 67, 76
(1915)) (emphasis added). The bar's professional materials reflected similar views well into the
1930s. See 11 AM. JUR. CONSTITUTIONAL LAW, § 267, at 1006-07 (1937) ("[lIt is settled that the
possession and enjoyment of all rights are subject to the police power .... Consequently, both
persons and property are subjected to all kinds of restraints and burdens in order to secure the
general comfort, health, welfare, and prosperity of the people of the state." (footnote omitted)); id.
at § 268, at 1009 ("No rule in constitutional law is better settled than the principle that all property
is held subject to the right of the state reasonably to regulate its use under the police power .... );
id. at § 264, at 1000 ("Rights and privileges arising from contracts are subject to regulations for
the protection of the public health, the public morals, and the public safety, in the same sense and
to the same extent as all property .... "); see also HUGH EVANDER WILLIS, CONSTITUTIONAL
LAW OF THE UNITED STATES 643 (1936) ("The great powers of government ... are the police
power, the power of eminent domain, and the power of taxation. Whenever there is a proper
exercise of these powers, personal liberty is rightly delimited .... Property for long years made a
direct appeal to due process, but its direct appeal for the most part failed."); id. at 707 ("[I]f the
social control is a proper exercise of the police power.., there is no violation of due process as a
matter of substance."); id. at 715 ("[P]ersonal liberty is never protected by the due process clause
as a matter of substance against the police power ... ").
116. There is no question, for example, that after apparently increasing progressivism by
the end of the war, the Court made a significant turn toward the right during the period from 1920
to 1930. This occurred, in part, because of a change in the membership of the Court. See Robert
Post, Federalism, Positive Law, and the Emergence of the American Administrative State:
Prohibitionin the Taft Court Era, 48 WM. & MARY L. REV. 1, 2 (2006) ("The Taft Court was...
dominated by conservative Justices."); James A. Henretta, Charles Evan Hughes and the Strange
Death of Liberal America, 24 LAW & HIST. REV. 115, 118 (2006) (noting the "conservative
outlook of the Taft court of the 1920s").
117. See, e.g., MCGEHEE, supra note 16, at 345 ("Although freedom and the liberty to
contract are fundamental rights within the guaranties of the Constitution, they may be limited by
the State in the exercise of the police power in the interest of public safety, health, or morals, or,
under certain conditions, in the exercise of the legislative power merely."). Cases like Meyer v.
Nebraska, 262 U.S. 390 (1923), and Pierce v. Society of Sisters, 268 U.S. 510 (1925), decided in
the 1920s, are sometimes thought to have begun the move toward a strong rights jurisprudence.
This, however, is a misreading of both cases, each of which follows the same rule that a right or
liberty may be trumped by the public welfare. Id. at 534. Meyer unquestionably enumerates a long
list of "liberties," but these were "reserved rights" of the day, all of which could be subject to the
police power. Without a claim of public harm, no reason to invoke the police power existed. This
is precisely what the Meyer Court held: "Mere knowledge of the German language cannot
reasonably be regarded as harmful." Meyer, 262 U.S. at 400. So, too, Pierce relies upon Meyer
and the fact that the law impairs the school's property rights without a showing, again, that the
parochial schools harm the "common welfare."
on the theory of public harms, as in Miller v. Schoene, 118 but also zoning
regulations, as in Village ofEuclid v. Ambler Realty.' 19
In fact, the police power discourse was the default rule for many areas of
constitutional law, 12 including First Amendment cases: "[T]he freedom of
speech ... does not confer an absolute right .... [A] State in the exercise of its
police power may punish those who abuse this freedom."' 21 In Whitney v.
California,the Court allowed states to punish political speech aimed at harming
the public welfare based on a police power theory. 122 At the time, it was not
"open to question" that a "State in the exercise of its police power" could
"punish those who abuse [the] freedom [of speech] by utterances inimical to the
public welfare, tending to incite to crime [or] disturb the public peace ... ,,123
Similarly, in New York ex rel. Bryant v. Zimmerman, the Court rejected the
claim that a statute requiring the Ku Klux Klan to reveal its membership
violated the "liberty" of the defendant "in that it prevent[ed] him from
exercising his right of membership in the association."' 24 The Court stated that
"his liberty in this regard, like most' 25
other personal rights, must yield to the
rightful exertion of the police power."'
Critics at the time wondered, rightly, how far the police power might go.
One scholar asked whether it would "require all restaurants to abandon
crockery" for paper cups "out of solicitude for ... health"? 126 To be sure, some
cases, even quite important ones, failed the police power standard. 2 7 These
118. Miller v. Schoene, 276 U.S. 272, 279-80 (1928) ("[W]here the public interest is
involved preferment of that interest over the property interest of the individual, to the extent even
of its destruction, is one of the distinguishing characteristics of every exercise of the police power
which affects property.").
119. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 387 (1926). The zoning
"ordinance now under review," Justice Sutherland wrote, "and all similar laws and regulations,
must find their justification in some aspect of the police power, asserted for the public welfare."
Id.
120. Novel rights claims also fell to this rationale. In Justice Holmes's 1927 opinion in
Buck v. Bell, 274 U.S. 200 (1927), Carrie Buck's lawyers argued that she had a right to bodily
integrity that could not be infringed by the state, which wanted to forcibly sterilize her. Justice
Holmes's five-paragraph opinion rejected the rights claim with the back of the hand, suggesting it
was obviously wrong to say that in no circumstance could the state sterilize. NoURSE, supra note
18, at 29-30. In doing so, he implied that a strong claim of right was ridiculous, presumably
because he knew that any right was subject to the police power. The rest of the opinion did not
rehearse the well established police power rule, but simply applied it, explaining that there were
sound reasons in public health and welfare to sterilize--"[t]hree generations of imbeciles" were
enough. Buck, 274 U.S. at 207. As Lawrence Friedman explains, Buck was considered a
progressive decision for its day precisely because it followed the general police power rationale.
Accord WILLIS, supra note 116, at 754; see also NOURSE, supra note 18, at ch. 6.
121. Gitlow v. New York, 268 U.S. 652, 666-67 (1925).
122. 274 U.S. 357, 371 (1927).
123. Id.
124. 278 U.S. 63, 72 (1928).
125. Id.
127. This was increasingly the case involving price regulation in the 1920s. See, e.g.,
CALIFORNIA LA W RE VIEW [Vol. 97:751
cases concerned the great issues of the day that divided progressives and
conservatives, and most importantly, labor and capital. 28 Cases that did not
seem to add up also emerged; the "arbitrariness" restraint on the police power
was widely viewed by the mid-1920s as yielding inconsistent results. Why, for
example, did the Court permit the outlawing of margarine but strike down a law
barring the use of shoddy in mattresses?' 29 Why did the Court use the Due
Process Clause to bar some regulations of bread and not others? 130 And in
dozens of cases, if not hundreds, the Court found itself enmeshed in the strange
3
process of reviewing the reasonableness of railroad and utility rate-making.' '
Modem scholars correctly note that the Court's police power analysis
sometimes appeared incoherent and that cases on more than one occasion
seemed irreconcilable,' 32 but this could be said of almost any period of time
and almost any doctrinal rule. The real trouble was that the juristic story was
not the only story of rights told during this period. Another story, both very
different and highly public, lived by its side.
III
THE POPULAR CONSTITUTIONALIST CRITIQUE
"My proposal is that ... if the court has decided that the Legislature
plus the Executive has exceeded the power granted by the people to
them under the Constitution, that the people shall themselves have the
right to say whether their representatives in the Legislature and the
executive office were
133
right, or whether their representatives on the
court were right."'
Theodore Roosevelt (1912)
For many scholars, the judicial story of rights trumped by the police
Ribnik v. McBride, 277 U.S. 350 (1928); Williams v. Standard Oil Co., 278 U.S. 235 (1928);
Tyson & Brother v. Banton, 273 U.S. 418 (1927).
128. See, e.g., Evans Clark, Industry Is Setting Up Its Own Government: American Capital
and Labor Interests Find a New Way to Avoid DisastrousStrikes and Lockouts, N.Y. TIMES, Mar.
21, 1926, at XX5; Labor Chief Urges Industrial Peace, N.Y. TIMES, Jan. 2, 1928, at 17; Labor
Chief Plans Fight in Congress, N.Y. TIMES, Jan. 18, 1928, at 40; John B. Andrews, Labor and
Capital,N.Y. TIMES, Jan. 1, 1925, at 33; John B. Andrews, Labor and Capital,N.Y. TIMES, Jan.
1, 1927, at 9.
129. Compare Powell v. Pennsylvania, 127 U.S. 678 (1888) (margarine), with Weaver v.
Palmer Bros. Co., 270 U.S. 402 (1926) (shoddy mattresses).
130. Compare Jay Bums Baking Co. v. Bryan, 264 U.S. 504 (1924), with Schmidinger v.
City of Chicago, 226 U.S. 578 (1913).
131. Rate cases, which were very high in number, tend to skew the numbers of those who
assert the Lochner Court struck down a large number of statutes. See Phillips, supra note 19
(discussing these cases).
132. Friedman, supra note 3, at 1405-13 (arguing that a number of the Court's cases
appeared inconsistent); see, e.g., cases cited supra notes 129-130.
133. Roosevelt Answers Cry of Revolution, N.Y. TIMEs, Feb. 27, 1912, at 1, 3 (emphasis
added).
power during the Lochner era will seem astonishing if not downright
impossible. Modem scholars have heard a very different account of Lochner for
over fifty years, a story in which rights were strong and not weak, and in which
the Court regularly thwarted regulation and the redistribution of wealth by
claims of right. Indeed, in conventional understandings, the Lochner era is
synonymous with a regime of strong property and contract rights. 34 How can
this story exist side by side with the juristic tale told above?
The answer is that these stories emerge from the very structure of the
Constitution. In cases highly relevant to political debates, more than one branch
has an incentive to engage in constitutional dialogue. If votes can depend upon
it, both the courts and political players will invoke the Constitution. As
Madison explained in the Federalist Papers, this is by design: to allow the
separation of powers to work, "the interest of the man" must be wedded to the
interest of the place.1 35 In other words, two constitutional stories will always
exist if constitutional actors have an incentive to make a public issue out of a
case. There will be the story by courts in professional discourse, and the story
by public and political actors in the public square.
Enter the second tale of Lochner, a tale in which rights are strong, but not
because judges make them so. They are strong because they appear to thwart
popular will and thus the politically powerful take them up as a call to arms.
Theodore Roosevelt plays the lead in this story, one which is completely absent
from traditional lawyerly36accounts, yet is essential to creating the story of
Lochner we know today.'
Roosevelt harshly criticized cases such as Lochner, Adair, and Coppage,
which were small in number but lived an exceedingly large, public life. Such
cases sent children to the mills and sweatshops,' 37 allowed employers to
134. See, e.g., Bernstein, supra note 3, at 12 ("[T]he basic motivation for Lochnerian
jurisprudence was the Justices' belief that Americans had fundamental unenumerated
constitutional rights ....");Friedman, supra note 3, at 1403 ("[T]he tool for judicial usurpation
was the (mis)reading into the constitution of fights not clearly set out there, such as the liberty of
contract ....).
135. THE FEDERALIST No. 51 (James Madison); Victoria Nourse, Toward a "Due
Foundation"for the Separation of Powers: The Federalist Papers as PoliticalNarrative, 74 TEX.
L. REV. 447 (1996); Victoria Nourse, The Vertical Separation of Powers, 49 DUKE L.J. 749
(1999) [hereinafter Nourse, Vertical Separation].
136. See, e.g., Roosevelt Cries War to Knife on Both Old Parties,CHI. DAILY TRiB., Feb.
13, 1913, at 1 ("We recognize that property has its rights, but they are only incident to, they come
second to, the rights of humanity. We hold that the resources of the earth were placed for the use
of man in the mass; that they are to be developed for the common welfare of all, and that they are
not to be seized by a few for the purposes of oppression of the many or even with disregard of the
rights of the many.").
137. Hammer v. Dagenhart, 247 U.S. 251 (1918) (striking down as unconstitutional a
federal law aimed at limiting child labor despite the fact that there was a massive sentiment in
favor of child labor restriction; it was not until the New Deal that federal power to regulate child
labor was achieved).
prevent individuals from joining unions,' 38 restricted the ability of unions to

boycott, 139 and kept minimum wage and hour legislation for able-bodied men in
litigation limbo for thirty years.' 40 People demonstrated, fought, and voted
based on these issues; these cases left such an important impression because
they were focal points for the discontent of great masses of people. One must
remember that "[i]n 1900, more than half the country, perhaps 36 to 40 million
men, women, and children, made up the laboring class that performed manual
141
work for wages."'
Thus, while the juristic story truthfully represents the elite discourse, the
popular tale of Lochner as a strong rights decision is also true. The latter simply
reflects a different type of discourse and a different institution-the public
discourse of popular constitutionalism. Elite juridical discourse allowed claims
of right to be trumped by the police power; the public discourse made rights
strong because of their effect on people's lives. In short, liberty and right lived
simultaneously in judicial opinions and the public square, but the same terms
had different meanings in different contexts, even though they purported to
address the same object. Those who resisted labor's claims invoked "liberty"
and "right to contract" as political slogans. The deployment of these terms in
political debate, however, did not match their deployment within legal doctrine.
For example, before his progressive conversion, future president Wilson
declared that the 'right of freedom of contract' was the 'most precious of all
"the possessions of a free people,"' a political slogan signaling that he was
against labor unions. 142 In the 1912 presidential campaign, when Theodore
Roosevelt heard that Wilson had invoked the term "liberty," he insisted that it
was "the laissez-faire doctrine of English political economists three-quarters of
a century ago."' 143 "Liberty" was a political fighting word, one used by the
National Association of Manufacturers to fight "unionism,"'' 44 a rhetorical and
political invocation
145
that lasted until the "Liberty League" was created to fight
the New Deal.
These slogans not only connoted political positions, but also visions of
138. Coppage v. Kansas, 236 U.S. 1 (1915); Adair v. United States, 208 U.S. 161 (1908).
139. The labor injunction, upheld in Truax v. Corrigan, 257 U.S. 312 (1921), was one of
the central tools business used to thwart union action. FORBATH, supra note 18 (labor injunctions).
140. Andrew K. Black III, Wages and Hours Laws in the Courts, 5 U. PITT. L. REV. 223,
225-229 (1939) (describing the litigation history of hours laws).
141. MICHAEL MCGERR, A FIERCE DISCONTENT: THE RISE AND FALL OF THE
PROGRESSIVE MOVEMENT IN AMERICA, 1870-1920, at 15 (2003). By the end of the World War I,
progressivism had become embedded in mainstream politics. Given the onslaught, and relative
popularity of Theodore Roosevelt's Progressive Party, Woodrow Wilson had adopted the status of
a reformer. Id. at 280. After the war, Warren Harding called himself a "rational progressive," and
Herbert Hoover described his creed as "progressive individualism." Id. at 320.
142. JAMES CHACE, 1912: WILSON, ROOSEVELT, RAFr & DEBS-THE ELECTION THAT
CHANGED THE COUNTRY 51 (2004).
143. Id. at 196.
144. MCGERR, supra note 141, at 126.
145. See NouRSE, supra note 18, at ch. 6.
2009) A TALE OF TWO LOCHNERS
government. Conservatives and progressives alike feared trade unionism as the

first step toward anarchy or socialism.146 To many in the first decade of the 147
century, organized labor meant "terrorism, tyranny, and lawlessness."'
Increasingly after World War I, people associated the fear of unionism with
class war, which they associated in turn with Bolshevism after the Russian
Revolution. For example, in 1920, the future chief justice William Howard Taft
criticized in the Yale Review the "latitudinarian construction of the
Constitution," because it would "weaken the protection it should afford against
socialistic raids upon property rights. 148 This of course was a political claim,
not a doctrinal one, but it was one of the great rhetorical moves of the day made
by the Court's supporters, who argued that property rights were the last line of
defense against socialism.
For labor, the public emphasis on property rights sent precisely the
opposite message. If conservatives feared that they would lose their freedom
without property rights, labor believed they would lose their freedom with
property rights. For labor, the public and political emphasis on property rights
cruelly mimicked slavery by imagining men as things. For example, when
business fought restrictions on child labor, they invoked parents' property right
in their children. To labor, property rights violated the notion of "free labor"
that had inspired the Fourteenth Amendment. 49 Labor called for human rather
than property rights, a call that would continue throughout the century. This
was their symbolic claim in a battle which they would win in the New Deal, for
the recognition of unions and various forms of "social" rathtr than
"individualistic" security. But this was not a doctrinal claim made by
professional lawyers. It was a claim of popular constitutionalism. This
phenomenon is not terribly arcane, even if it diverges from modem
understandings. No contemporary constitutionalist would confuse today's
political slogan, "the right to choose," with the constitutional doctrine
governing abortion, nor should one confuse yesterday's political claims of
146. See, e.g., Should Wilson Encourage Union-Labor Anarchy, L.A. TIMES, Nov. 15,
1914, at V13 (anarchy associated with unionism); The Ten Hour Decision, N.Y. TRIB., Apr. 19,
1905, at 4 (editorial on Lochner opening with the line: "The Supreme Court draws the line sharply
between sanitation and socialism.").
147. Denounces Labor Unions, N.Y. TIMES, Jan. 18, 1902, at 2 (statement of George P.
Baer, President of the Philadelphia and Reading Railway, regarding labor unions); see also
MCGERR, supra note 141, at 119; see, e.g., The Ten-Hour Decision, N.Y. TIMES, Apr. 28, 1905, at
8 (describing labor as "professional agitators"). This was in part a legacy from the Gilded Age,
which "offered a litany of class conflict: the great railroad strike of 1877, the strike against Jay
Gould's Missouri-Pacific Railroad in 1886, the Haymarket Bombing in Chicago the same year,
the Homestead strike of 1892, the Pullman strike of 1894, and countless other battles." McGERR,
supra note 141, at 126; see also Malcolm H. Lauchheimer, Imminent Constitutional Shams,
FORUM 91 (Jan. 1917) ("[T]he courts, which have been compelled to advance as far towards
socialism as the minimum wage ... ").
148. William Howard Taft, Taft Writes About Wilson, N.Y. TIMES, Oct. 3, 1920, at 4
(reprinting Yale Review article).
149. See Forbath, supra note 85.
liberty, right to contract, and "laissez-faire" with actual legal doctrine.
A. Theodore Roosevelt and the Originsof the Second Lochner Tale

The Lochner opinion was not immediately the subject of widespread
criticism. 150 Many of the major newspapers, like the New York Times, lauded
the opinion.' 51 The Los Angeles Times went so far as to suggest that there could
be "no two opinions" that the law violated the right to contract.1 52 The Dallas
Morning News embraced the Court's reaffirmation of the right to contract,
"which demagogues in practical politics seem so determined to take away." 153
The New York Heraldexplained that the Supreme Court had rightly rejected the
54
unions' attempt to "forc[e] upon the country the hours of labor programme.",
Public supporters of the opinion did not necessarily focus on the question
of right; they were more worried about labor, socialism, and tyranny of the
mob. The almost joyful New York Tribune explained that the Lochner decision
was a "heavy blow to all varieties of socialists, who will see this, as in other
instances, like that of the income tax, evidence that the Constitution of the
United States is ...an obstacle to the tyranny of majorities as well as the
tyranny of monarchs."' 55 When right was mentioned, it had little resemblance
to the police power formulations we saw above. The public rhetoric of right
was absolute and even religious. As the Dallas Morning News put it: "The right
of contract is one of the most sacred rights of the freeman, and any interference
with such 6 privilege by Legislatures or courts is essentially dangerous and
' 5
vicious."'
150. See, e.g., Right of Contract, DALLAS MORNING NEWS, Apr. 18, 1905, at 2; 10 Hour
Bakery Law Invalid, THE SUN (N.Y.), Apr. 18, 1905, at 4; Labor Not Restricted, N.Y. TRIB., Apr.
18, 1905, at 1.
151. Court Overturns The Ten Hour Law, N.Y. TRIB., Apr. 18, 1905, at 4; Defying the
Supreme Court, THE SUN (N.Y.), Apr. 19, 1905, at 6; Important Decision, PENSACOLA J.
(Pensacola, Fla.), Apr. 18, 1905, at 1; New York JO-Hour Law is Unconstitutional,N.Y. TIMES,
Apr. 18, 1905, at 1; Editorial, MOUNT-VERNON SIGNAL (Mt. Vernon, Ky.), Apr. 21, 1905, at 2
(the Supreme Court delivered a "knockout blow" to the labor unions' effort to obtain an eight hour
bill from Congress). A number of papers simply quoted large parts of the opinion. See Bakery Law
Invalid, WASH. POST, Apr. 18, 1905, at 11; Law Can't Limit A Working Day, CHI. DAILY TRIB.,
Apr. 18, 1905, at 1; Ten-Hour Law Killed by Court, BOSTON DAILY GLOBE, Apr. 18, 1905, at 3.
Others reported the decision along with other Court decisions. See U.S. Supreme Court, WALL ST.
J., Apr. 18, 1905, at 2.
152. Stands by the Constitution, L.A. TIMES, May 14, 1905 at VI10.
153. In Which the Right of Contract Is Upheld, DALLAS MORNING NEWS, Apr. 20, 1905, at
6.
154. The Ten Hour Decision, supra note 146, at 4.
155. Id.
156. In Which the Right of Contract is Upheld, supra note 153, at 6. Given this, it is not
surprising that some of the very early legal commentary supported this view. See, e.g., Validity of
State Regulation of Hours of Labor, 60 CENT. L.J. 401, 401-02 (1905) (Lochner established "a
new rule of construction or limitation of the police power ....[L]abor, even in any department,
may possibly carry with it the seeds of unhealthiness. But are we all, on that account, at the mercy
of legislative majorities?").
Granted, there were those more sympathetic to labor's position, but their
criticisms amounted to little more than grumbling.' 57 The Salt Lake Herald
decreed that the "majority of the court did not take up the humane side of the
question at all."' 58 Labor leaders insisted that they would defy the decision, and
159
the press predicted that the bakers would strike and there would be no bread.
The labor press was quick to emphasize the hypocrisy of invoking the rights of
the working man that he did not want. 16 Nonetheless, "[t]here were no riots, no
political upheaval, no 161
episodes of civil disobedience; even the threatened strike
failed to materialize."'
It would take the indomitable Theodore Roosevelt for Lochner to become
a legal and public icon. During his presidency, Roosevelt (who was not a
lawyer) made clear that he was no friend of the courts.' 62 Like most
progressives, he insisted that the judiciary had been hostile to the regulation of
trusts, protecting "property" rights rather than "human" rights (one of the great
political slogans of the period). 163 This all reached fever pitch, however, when
Roosevelt began his political comeback during Taft's presidency.' 64 Just back
from his African safari in 1910, Roosevelt delivered a sensational speech to the
Colorado legislature attacking the Supreme Court.165 Roosevelt specifically
cited two decisions: one was Lochner, and the other was United States v. E.C.
Knight, an antitrust case. 16 6 Roosevelt charged that the courts had created a
"neutral zone" in which neither the state (Lochner) nor nation (Knight) could
157. See Ross, supra note 106, at 41 ("Although proponents of social reform continued to
grumble about the judiciary during the decade from 1897 to 1906, criticism was muted and
received little national attention.").
158. An Important Decision, SALT LAKE HERALD, Apr. 23, 1905, § 2, at 4. Those
emphasizing the dissenting opinions tended to focus on Justice Harlan's dissent, not Holmes's.
See, e.g., Ten Hour Law Killed by Court, BOSTON DAILY GLOBE, Apr. 18, 1905, at 3 (headline:
"Let State Alone," Says Harlan); Law Can 't Limit Workday, supra note 151.
159. See, e.g., 85,000 Bakers May Strike, N.Y. TIMES, Apr. 18, 1905, at 1; Law Can't Limit
Workday, supra note 151.
160. PAUL KENS, LOCHNER V. NEW YORK: ECONOMIC REGULATION ON TRIAL 144 (1998).
161. Id. at 145. For a general view of Theodore Roosevelt and the courts during this period,
without specific focus on Lochner, see Ross, supra note 106, at 130-54.
162. CHACE, supra note 142, at 15.
163. A Review of the World, 49 CURRENT LITERATURE No. 4 (Oct. 1910); see also
Theodore Roosevelt, Colonel Roosevelt on the Big Stick and the Square Deal, IDAHO DAILY
STATESMAN, Feb. 1, 1914, at 2 (continuing his criticisms of the judiciary even though he lost his
bid for reelection).
164. Roosevelt's articles critiquing the Court began shortly after his presidency ended. See,
e.g., THEODORE ROOSEVELT, A Judicial Experience, in OUTLOOK EDITORIALS 13, 20 (1909) (not
mentioning Lochner by name but criticizing the judiciary's embrace of freedom of contract); see
also William Travers Jerome, Ought Judges to Know Life, OUTLOOK (N.Y., N.Y.), Mar. 27, 1909,
at 665.
165. Mr. Roosevelt's Attack on the Courts, N.Y. TIMES, Aug. 31, 1910, at 8. The speech
was reported widely. See, e.g., Mr. Roosevelt Attacks FederalSupreme Court, N.Y. HERALD Aug.
30, 1910, at 4; Mr. Roosevelt's Speeches, N.Y. TIMES, Aug. 30, 1910, at 2 (reprinting Denver
speech); Shots Are Sent at High Court by Roosevelt, ATLANTA CONST., Aug. 30, 1910, at 1.
166. United States v. E.C. Knight, 156 U.S. 1 (1895).
express majority will and "popular rights."' 167 The Court had become a refuge,
Roosevelt explained, for the very rich men "who wish to act against the interest
68
'
of the community as a whole."'
Roosevelt's critique of Lochner was not that the courts had created a new
right to contract, nor that the courts had diverged from original intent, but that
the courts had ignored the "welfare of the general public."' 169 Echoing Justice
Harlan, Roosevelt attacked Lochner using the police power rationale. He
claimed that the Court did not know "the facts" of how the baking business was
"carried on under unhygienic conditions."' 70 The Court had struck down the
law, despite the approval of the New York legislature and the New York courts,
on the theory of a "liberty to work under unhygienic conditions. ' 71 It was a
decision "nominally against State rights ... but really against popular rights,
against the democratic principle of government by the people under the forms
72
of law."' Roosevelt later elaborated on his position:
In the New York Bakeshop Case it is our duty to say that it is for the
people of a State to decide whether they intend to be true to the school
of political economy of the eighteenth-century individualistic
philosophers or whether they intend to act on the principles set forth in
such books (to mention two among many) as those of Professor 173 Ross
on "Social Control" and by Father Ryan on "A Living Wage."'
Roosevelt's attack on the Court struck a chord, and the press sharply
criticized him. In the East, lawyers denounced the speech, making the issue
even more salient.' 74 The New York Times branded the speech "regrettable and
discreditable," undermining the authority of law and encouraging "distrust of
the judiciary."' 175 Judge Alton B. Parker, who wrote the Lochner opinion in the
167. A Review of the World, supra note 163 (quoting Roosevelt's Denver speech). As the
article notes, the "neutral zone" metaphor came from William Jennings Bryan, who had used a
similar metaphor, "twilight zone," in his 1896 presidential campaign. Id.
168. Id. This view was remarkably prescient of the complaint that Franklin D. Roosevelt
would make during the New Deal when the Supreme Court struck down state and national
attempts to regulate wages. This speech was reported widely across the nation. See, e.g., Roosevelt
Attacks the Supreme Court United States in Denver Speech, MACON DAILY TELEGRAPH (Macon,
Ga.), Aug. 30, 1910, at 2.
169. Roosevelt Attacks the Supreme Court United States in Denver Speech, supra note 168,
at 2.
170. Id.
171. Clean Bakeshops Can Be Had, N.Y. TIMES, Nov. 11, 1910, at 8.
172. Id.
173. Theodore Roosevelt, Nationalism and the Judiciary,OUTLOOK (N.Y., N.Y.), Mar. 18,
1911, at 574.
174. Bar Denounces Mr. Roosevelt's Court Attack, N.Y. HERALD, Aug. 31, 1910, at 1.
175. Mr. Roosevelt's Attack on the Courts, supra note 165, at 8; see also Attack on
Supreme Court by Mr. Roosevelt Stirs Editors, N.Y. HERALD, Sept. 1, 1910, at 4. The New York
Times editorial page did not let the issue go, referring to it twice more in urging that the
"unsanitary" conditions in bakeshops could be cured by a law that focused only on sanitation. See
The Bakeshop Bill, N.Y. TIMES, Mar. 18, 1911, at 12; Clean Bakeshops Can Be Had, supra note
171, at 8.
New York Court of Appeals, proclaimed that the "bench and bar" would reject
Roosevelt's critique, and that the decision, far from being obviously wrong,
was exceedingly close: "The history of this case indicates how narrow was the
dividing line between upholding and rejecting the statute."' 76 The New York
Evening Mail thought Roosevelt's remarks were "counsels to chaos," and the
Philadelphia Telegraph predicted that they were "likely to be followed by a
sinister reaction."' 177 Labor, of course, disagreed, embracing Roosevelt's
criticism of the courts with enthusiasm. The Socialists even complained that
Roosevelt's critique showed just how timid they had been. 178 In the end,
however, his critics recognized that Roosevelt's speeches "in the West, much
as they make 1the
79
judicious grieve, are clearly in line with what the American
People want."'
Roosevelt was unfazed. In the following month, before a crowd of 40,000,
Roosevelt defended his right to criticize the Court and opined, "I have not a
word to retract."' 80 Invoking Lincoln, he reminded the crowd that the great
president was "assailed" for his criticism of Dred Scott.18 1 Critique of the Court
was not "merely the right but the duty of citizens" who believed judicial
decisions were wrong. 182 Judicial decisions, Roosevelt urged, should "be
submitted to the intelligent scrutiny and candid criticism of their fellow
men."18 3 The people, he argued, should be capable of reviewing judicial
decisions on "certain constitutional questions" dealing with the public
welfare. 184 Shocked at such a proposal, the New York Times editorialized that,
176. Attack of Roosevelt Answered by Parker, ATLANTA CONST., Sept. 1, 1910, at 4; see
also Mr. Parker Meets Attack on Courts by Mr. Roosevelt, N.Y. HERALD, Sept. 1, 1910, at 1;
Parker in Court's Defense, WASH. POST, Sept. 1, 1910, at 11; Parker Defends Judges, N.Y.
TIMES, Sept. 1, 1910, at 2.
177. A Review of the World, supra note 163.
178. See, e.g., Berger Angered; Coup a Failure, CHI. DAILY TRIB., Nov. 16, 1910, at 2
(reporting that when Missouri's Governor Hadley embraced Roosevelt's critique of the courts, the
crowd at the American Federation of Labor convention cheered).
179. A Review of the World, supra note 163.
180. Roosevelt Praises Some Acts of Taft, N.Y. TIMES, Sept. 18, 1910, at I (reporting
Syracuse speech).
181. Id. Roosevelt appears to have continued to refer to the "Bakeshop Case" as he toured
New York. See, e.g., Roosevelt Quotes Gaynor, N.Y. TIMES, Oct. 30, 1910, at 4 (Roosevelt quotes
an opinion in which Gaynor describes liberty as the liberty to work to death); The Judge and the
Rabbit, N.Y. TIMES, Sept. 18, 1910, at 12.
182. Roosevelt Challenged Enemies to Make Their Fight in the Open, GRAND FORKS
DAILY HERALD (N.D.), Sept. 18, 1910, at 1; see also Foes are Dared to Make Fightby Roosevelt,
THE ATLANTA CONSTITUTION, Sep. 18, 1910, at B3.
183. Foes are Dared to Make Fight by Roosevelt, supra note 182, at B3. Roosevelt made
similar claims in other places in New York. See, e.g., Not in King Business, WASH. POST, Oct 18,
1910, at I (Roosevelt criticizes courts and refers to the so-called "Bakeshop Case.").
184. People's Rule Theme of Col. Roosevelt, DALLAS MORNING NEWS, Mar. 21, 1912, at 1
(review of constitutional decisions). The state recall proposal was exceedingly controversial.
Willard Hurst once wrote that this position was "opportunistic." William Ross writes that "it gave
[Roosevelt] an issue on which he could out-La Follette La Follette." Ross, supra note 106, at 138-
39. Senator La Follette tried to mobilize the progressive side of the Republican Party for his 1912
should the Court try to follow "popular opinion," it would be like one who tries
to follow a single rabbit on a particular trail after letting loose ten rabbits over a
18 5
field of snow (implying that "public opinion" was in the eye of the beholder).
The debate continued18 6 and intensified as Roosevelt began his campaign
for president in earnest; by 1912, he formalized his complaints into a proposal
that state court judgments should be submitted to the people for review. Today,
this is known-somewhat deceptively-as one form of "recall." What is
forgotten is that every step of the way, Roosevelt invoked the "Bakeshop
Case." In response, Lochner's proponents characterized Roosevelt's support for
popular rights as support for majority tyranny. 187 In a 1912 speech at Carnegie
Hall in New York, 18 Roosevelt responded to this criticism by alluding to
Lochner as an example of judicial "tyranny."'' 8 9 Expressing his "scant patience"
for the view that he supported the tyranny of the majority, Roosevelt countered
that a tyranny of the minority stood behind "the present law of master and
servant, the sweat-shops, and the whole calendar of social and industrial
injustice." 19 0 If the majority really were tyrannous, Roosevelt claimed, "no
written words" were strong enough to stay tyranny.191
All of this enraged President Taft, who insisted that the Constitution was
presidential campaign. Id. There is no doubt that the judiciary was an easy political target and was
likely to get Roosevelt a number of working-class votes. On the other hand, the fact that his
criticism both pre- and post-dated the 1912 campaign, and reached back to his days in the New
York legislature, when the New York Court of Appeals struck down attempts to regulate the cigar
industry, may suggest that Roosevelt was a popular constitutionalist at heart. See id. at 139-40.
Roosevelt would claim that he was fighting the Socialists, and indeed elimination of judicial
review was part of the Socialist platform in the 1912 campaign. Id. at 141, 151.
185. The Judge and the Rabbit, supra note 181, at 12.
186. T.R. Criticizes Court Again, WASH. POST, Aug. 3, 1911, at 3 (discussing the
"bakeshop case"); TR. for Court Curb, WASH. POST, Oct. 21, 1911, at 1 (using the "bakeshop
case" again as an example). Roosevelt's criticisms of other decisions, such as a New York state
decision against worker's compensation legislation, ultimately came back to Lochner. Extension
of PopularPower, BANKERS' MAG., June 11, 1911, at 712 (quoting Roosevelt: "It is out of the
question that the courts should be permitted permanently to shackle our hands as they would
shackle them by decisions as this, as ... the decision in the bakeshop cases shackled them."). For
other references to the Bakeshop Case during the campaign, see Theodore Roosevelt, Judges and
Progress, OUTLOOK (N.Y., N.Y.), Jan. 6, 1912, at 40; Theodore Roosevelt, The Right of the
People to Rule, OUTLOOK (N.Y., N.Y.), Mar. 23, 1912, at 618; see also Maud Malone Stops
Roosevelt, N.Y. TIMES, Mar. 26, 1912, at 1 (Bakeshop Case); Roosevelt Answers Cry of
Revolution, supra note 133, at I (Bakeshop Case); Roosevelt Assails Political Enemies, N.Y.
TIMES, Aug. 18, 1912, at 1 (Bakeshop Case); Roosevelt Hits At Taft Again, N.Y. TIMES, Mar. 21,
1912, at I (Bakeshop Case); T.R. Tears Into Taft, WASH. POST, May 21, 1912, at 1 (Bakeshop
Case); Will Support Nominee, Declares Roosevelt, BOSTON DAILY GLOBE, Feb. 27, 1912, at 1
(Bakeshop Case). This provoked responses from some, like Harlan's son, who claimed to disavow
Roosevelt's reliance on his father. See Hits T.R. 's Doctrine, WASH. POST, July 11, 1912, at 3
(Bakeshop Case).
187. See T.R. Tears into Taft, supra note 186, at 1.
188. Id.
189. Id. at 4.
190. Id.
191. People's Rule Theme of Col. Roosevelt, supra note 184, at 1.
2009] A TALE OF TWO LOCIINERS
the "supreme issue" of the election. 192 Taft even told campaign audiences that
he was confident that the American people "will never give up the Constitution,
and they are not going to be honey-fugled out of it by being told that they are
fit to interpret nice questions of constitutional law just as well or better than
Judges." 193 Both candidates eventually lost to Woodrow Wilson, but Lochner
94
remained part of Roosevelt's speeches.
Enter Columbia Law Professor Charles Warren, who responded to
Roosevelt in a series of highly publicized articles in which he argued that the
Court's decisions were in fact quite progressive.' 95 Given the juristic tale told
in Part II, Warren could mount, without much difficulty, an empirical case that
the Court was in fact fairly progressive. Rather than telling a story of rights as
thwarting social progress, he told a story of evolution: "The tendency of the
present-day mind is unquestionably to tolerate increased restriction of the
individual by the State, in the interest of the general public welfare."' 196 Warren
explained that "[t]he rights of an individual will vary," depending
197
on whether
they "lie within or outside the scope of the police power."'
Warren's claims received a good deal of public attention for a law review
article. The New York Times repeated his argument that, of 548 cases, the Court
,,198 down three state laws, with Lochner being the one case of "real
had• only struck
importance. Warren's study similarly impressed the Los Angeles Times,
which summarized the Court's actions in great detail, noting a long list of
decisions upholding laws regulating liquor, gambling, food, securities, and
agriculture; permitting marketing societies; and upholding anti-trust and anti-
railroad measures. 199 The writer, Tom Fitch, was even more impressed that
Warren had unmasked Roosevelt's claims:
The Socialists and their Progressive allies are accustomed to indulge in
diatribes against the Supreme Court of the United States, and to accuse
its members of being the friends if not the serfs of trusts and
monopolies . . . . Those blatherskiting reformers who claim that the
192. WILLIAM HOWARD TAFT, SPEECH OF WILLIAM HOWARD TAFT ACCEPTING THE
REPUBLICAN NOMINATION FOR THE PRESIDENT OF THE UNITED STATES (Aug. 1, 1912), S. Doc.
No. 62-902, at I1 (1912).
193. All Taft Wants Is A Square Deal, N.Y. TIMES, Mar. 20, 1912, at 4 (honey-fugled); see
also Ross, supra note 106, at 149 (supreme issue of the campaign).
194. Roosevelt Cries War to Knife on Both Old Parties,supra note 136, at 1 (referring to
Bakeshop Case); Roosevelt Warns ofJudicialPerils, N.Y. TIMES, Nov. 8, 1913, at 6 (same).
195. Warren, supra note 19, at 295; see also Charles Warren, A Bulwark to the State Police
Power-The United States Supreme Court, 13 COLUM. L. REV. 667 (1913) [hereinafter Warren,
Bulwark].
196. Warren, Bulwark, supra note 195, at 667; see also The Federal Supreme Court,
ATLANTA CONST., Apr. 12, 1913, at 4; Jerome Michael, The Supreme CourtA National Bulwark,
ATLANTA CONST., Apr. 12, 1913, at 4.
197. Warren, Bulwark, supra note 195, at 668.
198. A ProgressiveCourt, N.Y. TIMES, Apr. 7, 1913, at 8.
199. Tom Fitch, Our Genuinely ProgressiveSupreme Court, L.A. TIMES, Apr. 18, 1913, at
11-6; see also The Federal Supreme Court,supra note 196, at 4; Michael, supra note 196, at 4.
court is an obstacle to what they call "social justice" legislation when

asked to name the decisions of the court which warrant their
animadversions refer to the case of Lochner vs. New York, decided
about eight years ago ....One swallow does not make a summer, and
this one case, even if it be 2subject
00
to criticism, ought not to put our
highest tribunal under a ban.
None of this criticism restrained Roosevelt, who continued to rail against
the judicial "peril" and to cite Lochner.20 1 In 1913, in setting forth his agenda
for the future of the Progressive Party, Roosevelt used the "Bakeshop Case" to
argue that the people needed to take back sovereignty over questions of law. 2
In 1914, Roosevelt lambasted or embraced judges in his Outlook columns
depending upon whether they adopted Holmes's views on the "New York
Bakeshop Case." 20 3 Roosevelt quoted at length from Holmes's dissent, even as
he acknowledged that by then the "Bakeshop Case has now been well-nigh
repealed by various other decisions, ' 2° 4 presumably referring to Muller v.
Oregon.20 5 Ex-president Taft replied in agreement, stating that the fault lay
with the elective judiciary, not the Supreme Court, and that the Court had
shown its adaptability.2 0 6 Taft even agreed that "if the New York bakeshop case
were to come before the present court the law would not be declared
unconstitutional.'207
By then, Lochner had a public life of its own, invoked by the press even in
the absence of presidential contest. When Muller v. Oregon headed to the
Supreme Court, journalists remembered Lochner.20 8 When, in 1917, the Court
in Bunting v. Oregon let the Oregon hours law stand, Lochner was
21°
remembered. 209 Even when the Court appeared to embrace progressivism,
200. Fitch, supra note 199, at 116.

201. Roosevelt Cries War to Knife on Both Old Parties, supra note 136, at 1; Roosevelt
Warns ofJudicialPerils,supra note 194, at 6.
202. See, e.g., Roosevelt Warns ofJudicialPerils, supra note 194, at 6.
203. Theodore Roosevelt, The Right of the People to Review Judge-Made Law, 97
OUTLOOK 843, 845 (1911).
204. See, e.g., Colonel Roosevelt on the Big Stick and the Square Deal, supra note 163, at
2. Roosevelt analogized to the Dred Scott decision: "It ... [was] necessary to reverse the Dred
Scott case in the interest of the people against slavery and privilege; just as later it became
necessary to reverse the New York Bakeshop case in the interest of the people against that form of
monopolistic privilege which puts human rights below property rights where wage-workers were
concerned." Theodore Roosevelt, Chaptersof a PossibleAutobiography, BOSTON DAILY GLOBE,
Feb. 1, 1914, at SMI0.
205. 208 U.S. 412 (1908).
206. Mr. Taft on the Judiciary,MORNING OREGONIAN, June 3, 1914, at 10.
207. Id.
208. Building Up Industrial Liberty, OUTLOOK (N.Y., N.Y.), Apr. 26, 1916, at 939
(discussing Lochner in relation to the Brandeis brief filed in Muller v. Oregon).
209. The Oregon Ten-Hour Law for Men Appealed Again, OUTLOOK (N.Y., N.Y.), Mar. 7,
1917, at 399 (discussing Lochner).
210. 1 say "appeared to embrace" because fairly salient cases of this period showed that the
Court was willing to uphold social reformist legislation. See Wilson v. New, 243 U.S. 332 (1917)
(upholding the power of the Interstate Commerce Commission, and a federal statute that mandated
commentators did not forget Lochner.2 11 The Court remembered Lochner when
212
it struck down Congress's first and second efforts to regulate child labor.
Senator Robert La Follette remembered Lochner when he proposed a
constitutional amendment to permit Congress to reenact any federal statute the
Court had declared unconstitutional and to prohibit any federal judge from
striking it down.2 13 Senator William Borah remembered Lochner when he
introduced a plan to require the concurrence of at least seven members of the
Court in any decision invalidating a federal law.214 In 1923, Lochner's infamy
was firmly sealed in the reaction to the Court's decision in Adkins v. Children's
Hospital.215 Adkins struck down a minimum wage law for women by partially
relying on Lochner, despite Justice Holmes's admonishments, in his Adkins
dissent, that Lochner should be given a rest.2 1 6 By then, the epithet
44
notorious ',217
had been firmly attached to the case. 218
B. The Academic Elite and the PopularStory

The story that Roosevelt popularized-the story of strong rights-had an
academic following that would form the backbone of modem academics'
misunderstanding of Lochner. To defend himself against attacks from the
bar,219 Roosevelt relied upon Dean Pound's 1909 Yale Law Journal article,
an eight-hour day for railroad workers); Hoke v. United States, 227 U.S. 308 (1913) (White Slave
Act); Second Employers' Liab. Cases, 223 U.S. 1 (1912) (worker's compensation schemes);
Hipolite Egg Co. v. United States, 220 U.S. 45 (1911) (Pure Food and Drug Act). Hostility to
labor, meanwhile, continued. See, e.g., Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229
(1917).
211. See Burdick, supra note 103, at 162 ("[T]he Lochner case was in effect overruled
."); Jackson Harvey Ralston, Shall We Curb the Supreme Court?, 71 FORUM 561 (1924).
212. Hammer v. Dagenhart, 247 U.S. 251 (1918); see also Child Labor Law Invalid,
OUTLOOK (N.Y., N.Y.), June 12, 1918, at 245, 248 (referring to Bakeshop Case). According to
William Ross, the Court's invalidation of child labor laws in Dagenhartwas the spark that lit the
fires of criticism against the Court in the years 1922-24. Ross, supra note 106, at 169. See, e.g.,
Bailey v. Drexel Furniture, 259 U.S. 20 (1922) (second child labor case).
213. Ross, supranote 106, at 194.
214. Id. at 218; see also Five to FourDecisions As Menace to Respectfor Supreme Court,
N.Y. TiMEs, Feb. 18, 1923, at XXI (speech by Idaho Senator William Borah referring to Lochner).
215. 261 U.S. 525 (1923).
216. Id. at 570 (1923) (Holmes, J., dissenting).
217. Does the Constitution Prevent Justice?, OUTLOOK (N.Y., N.Y.), Apr. 18, 1923, at 694.
("It is significant that, in finding the National Minimum Wage Law invalid, the Supreme Court
cited a decision which the Chief Justice assumed had been overruled and Mr. Justice Holmes
supposed 'would be allowed a deserved repose.' This is the decision in the famous, or, some
would say, the notorious Lochner case."). See also The Minimum Wage Decision, 96 CENT. L.J.
147 (1923) (reprinting Holmes's dissenting reference to Lochner as a decision he "had supposed.
would be allowed a deserved repose"); Ralston, supra note 211, at 561.
218. Law the Servant ofLife, 130 NATION 534 (1930) (criticizing the Court and using as an
example a law restricting "bakeshops" to ten hours a day).
219. See, e.g, A Review of the World, supra note 163 ("Mr. Roosevelt is no lawyer, and his
description of these two court decisions has been promptly attacked as entirely wrong and wholly
misconceived.").
220
Liberty of Contract. Pound, in turn, had quoted Roosevelt in the opening
221
paragraphs of the article.
Pound claimed that the Court based its holding in Lochner on the false
belief that the right to contract had a strong history. Pioneering realist critiques
of law, Pound charged that the right to contract was part of a "mechanical
jurisprudence ' 222 that exaggerated "private right at the expense of public
right. 223 According to Pound, the right to contract had no foundation in history
other than stray remarks by philosophers about the natural right to contract and
Adam Smith's laissez-faire philosophy.2 24 Modem scholars take Pound's piece
to signify that the right to contract was strong during that era. 225 But this is a
misreading. Rather, reading the article in full makes it clear that Pound believed
that by the time of Lochner, the law regarding the right to contract had
changed. Lochner was a "reactionary view," even when the Court decided it in
1905. 2 26 So, too, Adair was a throwback to the courts of "twenty years before,"
he wrote. 22 By the time he was writing, in 1909, Pound had to admit that even
state courts, the apparent bastion of reactionary decisions, had begun to
recognize the "actual facts of inequality as between employer and employee in
bargaining for labor in many sorts of employment., 228 In short, Pound found
Lochner controversial because the Court's refusal to apply the police power in
such a case was already anachronistic, not because the Court had created a new
229
super-strong right or refused to rely upon the text of the Constitution.
Thus, Pound never explicitly refuted the forgotten juristic story of
220. See Pound, supra note 16; see also HORWITZ, supra note 91, at 34 ("Roscoe Pound's
powerful article on 'Liberty of Contract' ... represented the most important early reaction of legal
Progressivism to the Lochner decision and its progeny.").
221. Pound, supra note 16, at 454-55 ("The late President [referring to Roosevelt] has told
us that it is because individual judges project their personal, social and economic views into the
law.").
222. Id. at 457.
223. Id.
224. Id. at 463 ("Legislation designed to give laborers some measure of practical
independence, which, if allowed to operate, would put them in a position of reasonable equality
with their masters, is said by courts, because it infringes on a theoretical equality, to be insulting
to their manhood and degrading, to put them under guardianship, to create a class of statutory
laborers, and to stamp them as imbeciles." (footnote omitted)).
225. See Richard Pildes, Conceptions of Value in Legal Thought, 90 MICH. L. REV. 1520,
1531 (1992).
226. Pound, supra note 16, at 479 ("In Lochner . . .the Supreme Court . . . took the
reactionary view, as it had fairly become by this time .... ").
227. Id. at 481 (discussing Adair and similar cases and stating that the position that the
public had no interest in health and safety from preventing strikes was "practically the position
from which we found the courts starting twenty years before").
228. Id. at 486.
229. This is not an idiosyncratic reading of the piece; as one commentator explained at the
time, "it is fairly certain that Dean Pound and Mr. Justice Holmes were arguing not that liberty of
contract ought not be included in the 'liberty' of the Fourteenth Amendment but that the concept
was only relative and restricted by the demands of social well being." Brown, supra note 43, at
951.
Lochner, in which the police power was capable of trumping rights. Moreover,
after dubbing Lochner a throw-back, Pound came to conclusions quite
consistent with the doctrinal story:
It will be seen that [the Lochner] opinion assumes two propositions of
fact: (1) That the public has no concern in how long a baker works...
[and] (2) that there is nothing in the trade of baking, as carried on in
large cities, inimical to the health of those who are employed in it for
long hours at a stretch. Here again study of the facts has shown that the
legislature was right and the court was wrong. Actual investigation has
shown that the output of shops in which the only kind of men who can
be had to work for unreasonable hours under unsanitary conditions are
employed, is not at all what the public ought to eat, and that long hours
in shops of the sort are distinctly injurious to health.230
Pound was not the only academic who has left the impression that the
Lochner Court adopted a view of strong rights; no one was more responsible
for propagating this "strong rights" theory than political scientist Edward
Corwin. 23 1 As early as 1909, Corwin repeatedly told the story that many
modem scholars have adopted: the Lochner Court had reinterpreted "the
Fourteenth Amendment in the light of the principles of Lockian individualism
and Spencerian Laissez Faire . ,232 Corwin based his view on a history of
"vested rights," 233 and over time, it gained vast numbers of scholarly
adherents. 234 Ironically, academics read his work and assumed a juristic story
230. Pound, supra note 16, at 480. Learned Hand also inveighed against the artificiality of
the Court's distinctions in Lochner. Agreeing with Harlan's Lochner dissent, Hand argued that the
eight-hour law should fall within the state's police power: "[Ihf the measure may possibly promote
the 'welfare' of the public, then it is valid. There would seem to be so direct a relation between the
welfare of a worker and the hours of his work that no doubt could be raised about it ..."Learned
Hand, Due Processand the Eight-Hour Day, 21 HARV. L. REV. 495, 503 (1908).
231. "When the Progressives took over American constitutional history they pretty well
wiped out internal-doctrinal and intellectual-approaches among the historians, leaving these to be
cultivated ... by political scientists like Corwin and McIlwain." Gordon, J. Willard Hurst, supra
note 20, at 19.
232. Edward S. Corwin, The Supreme Court and the Fourteenth Amendment, 7 MICH. L.
REV. 643, 646 (1909) [hereinafter Corwin, Fourteenth Amendment]; see also Edward S. Corwin,
The Basic Doctrine of American Constitutional Law, 12 MICH. L. REV. 247 (1913); Edward S.
Corwin, The "HigherLaw" Background of ConstitutionalLaw !, 42 HARV. L. REV. 149 (1928);
Edward S. Corwin, The "Higher Law" Background of ConstitutionalLaw II, 42 HARV. L. REV.
365 (1929). For other critiques, see Bruce, supra note 92; Jetsam and Flotsam, 69 CENT. L. J. 362
(1909).
233. See Corwin, Fourteenth Amendment, supra note 232, at 643.
234. See, e.g., Felix Frankfurter, The ConstitutionalOpinions of Justice Holmes, 29 HARV.
L. REV. 683, 690 (1915) (explaining that the Court had "sought to pour into the general words of
the Due Process Clause the eighteenth century 'law of nature' philosophy"); Walton Hamilton,
The Path of Due Processof Law, 48 ETHICS 269, 293 (1938) ("A constitutional doctrine contrived
to protect the natural rights of men against corporate monopoly was little by little commuted into a
formula for safeguarding the domain of business against the regulatory power of the state.");
Lowell J. Howe, The Meaning of "Due Process of Law" Priorto the Adoption of the Fourteenth
Amendment, 18 CALIF. L. REV. 583, 593 (1930) ("The weakness in the theory
...is that, when made a basis for judicial review, it merely substitutes the opinion of the judge
that was more in tune with Theodore Roosevelt's account of the Court than
with the Court's actual doctrine.
The academic fashion of the day-realism 235 -unwittingly aided in the
project and enabled Corwin and Pound to triumph over Warren. For example,
Professor Ray Brown criticized the Court in 1928 for making policy and argued
that liberty was not an inalienable and God-given "possession[] of a sacrosanct
individual," but rather something created by social institutions. 236 Regardless of
whether Brown or other realists correctly asserted the socially constructed
nature of property rights or liberty, the "realist" attack on the courts reduced the
doctrine to its particularly salient results: rights could and were thwarting
popular will, and hence they were strong. In this fashion, Theodore Roosevelt's
popular constitutionalist view, buttressed by academics like Pound and Corwin,
ultimately would become academic orthodoxy.
IV
IMPLICATIONS
How are we to understand the relationship between the juristic and

popular stories of Lochner, the former in which rights were doctrinally weak,
the latter in which they were politically strong? In this part, I explore four
implications of this history: (1) the strong and falsely dichotomous view of law
and politics held by Lochner critics and supporters; (2) the promise of a newly
realist historiography embracing the simultaneity of law and politics, and
refusing to reduce one to the other; (3) the grounding of this "double history" in
constitutional structure and thus the inevitability of popular constitutionalism;
and (4) the impact of this history on substantive due process theory and
doctrine.
A. What Revisionists and Counter-revisionistsWrongly Share

Lochner revisionism has generated a veritable cottage industry of claims.
Revisionist historians argue that Lochner was a product of doctrine, not laissez-
faire bias, thereby challenging the conventional wisdom that Lochner was a
politically-inspired decision.2 37 Some, such as political scientist Howard
Gillman, argue that the Court developed a coherent doctrine grounded in the
for that of the legislator as to what is fundamentally just.").

235. Realism, which had many manifestations, was a movement that emphasized that
judicial decisions were influenced by political or social considerations; the realists challenged the
notion that doctrinal reasons were complete. See generally BRIAN LEITER, NATURALIZING
JURISPRUDENCE: ESSAYS ON AMERICAN LEGAL REALISM AND NATURALISM IN LEGAL PHILOSOPHY
24 (2007) ("The real dispute between the Formalist and the Realist then concerns whether the
reasons that determine judicial decision are primarily legal reasons or non-legal reasons.").
237. For a review of some of the revisionism, see Bernstein, supra note 16 (summarizing
this debate in the legal and historical literature); Friedman, supra note 3; Rowe, supra note 21;
White, supra note 23. In the historical literature, this move begins a good deal earlier.
ancient concept of "class legislation," which aimed to achieve equality of

fight. 238 David Bernstein now asserts that this is the accepted view among 239
historians (even if most lawyers and constitutionalists would never know it).
Counter-revisionists have in turn contended that the 240
revisionist account forgets
the ways in which critics saw Lochner at the time.
One of the great lacunas in this debate is the very notion of right. Lacking
expertise in the law, historians and political scientists on both sides of the
debate have simply misunderstood the doctrine in crucial places. Revisionist
political scientists like Howard Gillman bravely and brilliantly challenged the
status quo, but they failed to appreciate the nuances of the relationship between
due process and equal protection. 24 1 Counter-revisionists misinterpreted the
notion of the police power. 242 The common mistake is that both revisionists and
counter-revisionists have imported a presentist doctrinal notion of right into the
past, assuming that since Lochner was a case about the fight to contract, that
right must have been a strong one-a right-as-trump. Some have even
suggested the anachronistic conclusion that Lochner foreshadowed the rights
discourse of the post-World War II era. 243 In short, neither revisionists nor
counter-revisionists have properly engaged with the historically dynamic notion
of right, a serious omission.
At stake here is a larger vision of history, not just an academic debate
about a single case. The scholarly consensus today views the Lochner era as
one of strong property and contract rights, the height of laissez-faire
liberalism. 244 A modem association of strong property rights with anti-
regulation, which Richard Epstein popularized in his Takings, has led many to
assume that the Lochner era was not only the age of strong property rights, but
also the halcyon days of the night-watchman state, in which little or no
significant regulation existed.24 5 History defies this assumption. During the
238. See GILLMAN, supra note 11.

239. See Bernstein, supra note 3, at 12 ("historians have generally adopted Howard
Gillman's thesis").
240. See Friedman, supra note 3, at 1402-28.
241. Gillman's argument that class legislation ideals explain the cases we today dub as
"substantive due process" fails to take into account that class legislation was a doctrine of equal
protection as much as of due process. On Gillman's confusion of equal protection with due
process, see Nourse & Maguire, supranote 39.
242. Compare KENS, supra note 160, at 107 (describing Justice Field's view of due process
as one which depended upon a "very narrow definition of what that power encompassed"), with
Justice Field's statements in Crowley v. Christensen, 137 U.S. 86, 89 (1890) ("[T]he possession
and enjoyment of all rights are subject to such reasonable conditions as may be deemed . . .
essential to the safety, health, peace, good order and morals of the community. Even liberty itself,
the greatest of all rights, is not unrestricted license to act according to one's own will.").
243. Bernstein, supra note 3.
244. See, e.g., Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV.
757, 788 (1994) (criticizing the "property worship" of the Lochner era); Cloud, supra note 6, at
556 (equating Lochner with strong rights).
245. See supra text accompanying notes 18-19.
Progressive Era, reformers passed statute after statute aimed at solving social
problems, from food and drug to sexual morality to eugenics laws, from
regulation of securities to agriculture to sanitation. 246 As then-professor and
future justice Felix Frankfurter wrote of the period, "It was a period of
legislative exuberance, both at Washington and in the states." 247 No fair
characterization of legislation during this period could call it the day of the
248
night-watchman state.
Thus, we must consider the fact that the standard historiographical views,
which shun internal accounts, 249 have underestimated its power. The Lochner
camps, both internalists and extemalists, share a strong dichotomous view of
law and politics. To them, an event or idea can only fall into a single category
at a time-it is either law or politics. Lochner's history is a central example:
entire schools of thought (both revisionist and counter-revisionist historians)
appear to agree that law and politics are competing, and complete,
explanations.
If my account is correct, however, failure to attend to the internal may
lead to gross distortions of the external. In Lochner's case, the average
constitutionalist assumes that the case was representative-that it stood for a
much larger universe of cases imposing a strong right. At least until recently,
legal historians have accepted this account, despite the rather overwhelming
empirical evidence to the contrary.25 This leads to a rather odd reversal. Based
246. See sources cited supra note 18.

247. Felix Frankfurter, Mr. Justice Holmes and the Constitution, 41 HARV. L. REV. 121,
128 (1927).
248. See, e.g., McGERR, supra note 141; see also RICHARD ABRAMS, CONSERVATISM IN A
PROGRESSIVE ERA: MASSACHUSETTS POLITICS 1900-1912, at 3 (1964); JOHN WHITECLAY
CHAMBERS II, THE TYRANNY OF CHANGE: AMERICA IN THE PROGRESSIVE ERA, 1900-1917 (1980);
LEWIS L. GOULD, REFORM AND REGULATION: AMERICAN POLITICS 19oo-i916 (1978); RICHARD
HOFSTADTER, THE AGE OF REFORM (1955); MARC KARSON, AMERICAN LABOR UNIONS AND
POLITICS, 19oo-i918; WILLIAM E. LEUCHTENBURG, THE PERILS OF PROSPERITY (1958); ARTHUR
S. LINK, WOODROW WILSON AND THE PROGRESSIVE ERA 1910-1917 (1954); GEORGE E. MOWRY,
THE ERA OF THEODORE ROOSEVELT, 1900-1912 (1958); DAVID SARASOHN, THE PARTY OF
REFORM: DEMOCRATS IN THE PROGRESSIVE ERA (1989); ROBERT H. WIEBE, BUSINESSMEN AND
REFORM: A STUDY OF THE PROGRESSIVE MOVEMENT (1962); MICHAEL WILLRICH, CITY OF
COURTS: SOCIALIZING JUSTICE IN PROGRESSIVE CHICAGO (2003). Though scholars have some
deep historiographic differences in approaches toward the Progressive Era, see, e.g., SARASOHN,
supra, at vii-xvii, few argue that the era embraced a minimal state.
249. Legal historians have, for some time, had great contempt for legal doctrine on the
theory that it was simply the epiphenomenal reflection of greater social movements or interests.
As Bob Gordon once expressed it: "The internal legal historian stays as much as possible within
the box of distinctive-appearing legal things; his sources are legal, and so are the basic matters he
wants to describe or explain .... The external historian writes about the interaction between the
boxful of legal things and the wider society... and he is usually looking for conclusions about
those effects." Gordon, J Willard Hurst, supra note 20, at 11. The latter claim for an externalist
view depends upon a causal assumption that society is prior to law. The questions this history
raises are whether there are different, and more complex, relations at issue; how the internal and
external operate in parallel; and how visions of the internal can affect our views of the external.
250. See supra note 19.
on an essentially internal misreading of Lochner as a strong rights case (one 251

dependent upon what behavioral economists call the "focalism illusion"),
historians offer an external strong-rights account that Lochner is based on
laissez-faire politics. That view, in turn, implies a partial and false external
story that the period was starkly anti-regulation.
The truth is that historians' internal/external distinction trades on the
law/politics dichotomy, rather than making it the object of historical inquiry.
Realists inspired the practice of reducing the internal to the external, which
conflates the effects of the doctrine with the doctrine itself. Realist
historiography rebelled against a generation that idealized the progressive
evolution of the common law and replaced it instead with one that emphasized
"the irrelevance of the past to the solution of current problems." 252 In a world in
which history was treated with contempt, it is not surprising that history would
be lost or mangled.
B. After Law or Politics: Principlesfor a New Legal Realism

The debate between Lochnerian revisionists and counter-revisionists
performs the very drama that it seeks to study by participating in the great
debate of twentieth century legal theory: law versus politics. Revisionists
foreground lost doctrine, asserting that in framing the Lochner decision, law
was more powerful than previously thought. Counter-revisionists foreground
politics, seeking to hold on to the more conventional narrative that Lochner was
influenced by politics, not by law. This very opposition is itself historically
contingent; the revisionists and counter-revisionists replay the arguments of
Professor Warren (the doctrine) and Professor Pound (the politics).253
If my account is correct, both stories of Lochner existed and occurred
simultaneously. Choosing between them, or reducing one to the other, is to
embrace a false history. Elite legal discourse dictated that even the Lochner
opinion itself would have to deal with the police power and the categories of
conventional legal discourse. At the same time, Theodore Roosevelt made it the
subject of high-level politics. It is important to understand the implications of
this double history for other theoretical debates.
251. John Bronsteen, Hedonic Adaptation and the Settlement of Civil Lawsuits, 108
COLUM. L. REV. 1516, 1533 (2008) (the focalism illusion holds that people tend to think of a focal
event in a vacuum, without considering the progress of other life events; the analogy here is to the
tendency of lawyers to focus on a single "great case" to the exclusion of the rest of legal doctrine).
252. Gordon, J. Willard Hurst,supra note 20, at 32.
253. This claim should not be confused with Barry Friedman's counter-revisionist
argument that decisions such as Lochner suggest the need for judicial review to attain both social
and legal legitimacy. Friedman, supra note 3. Friedman is correct to hint at a different history, but
it is not because the strong rights Lochner story was true of the doctrine, as he implies. The
counter-revisionist story was constructed by political reaction to the law, not the juridical
understanding itself. To conclude that this was the real story of Lochner (as opposed to the more
legal story told by Gillman and Bernstein) is to participate in the very debate that one is aiming to
study, to simply take the side of law or politics, Warren or Pound.
In real life, no one supposes that law and politics are static, dichotomous
alternatives that may be reduced to the other. In a post-realist world, a world
that aspires to a "new legal realism," 254 the question is not about law or politics,
but about how these simultaneous discourses imbibe, cross, and come to
constitute each other. 255 After all, the great irony of Lochner is that an
essentially political critique, Roosevelt's strong-rights view, has become the
"doctrinal" understanding of the case. A meta-discursive view, one which aims
to move beyond the twentieth-century law/politics dichotomy, would seek to
understand how these discourses crossed, intersected, and were translated
across the boundaries of law and politics. Three such meta-discursive principles
stand out in the two Lochner tales I have examined: the principle of
condensation, the principle of amplification, and the principle of switching.
Condensation: Lochner was a politicized decision, but it is far too broad
to suggest that it was propelled by an anti-regulatory, anti-redistributive, or
anti-common law bias. The great issue in the Lochner era was labor and its
association with socialism. 6 Grand fears of socialism were condensed, boiled
down, and embedded in the category "labor law," and it was this condensation
that kept the Court adamant about the line it drew in labor cases. Members of
the Court believed that they were standing for a far more important, much
254. For a good discussion of new legal realism, see Howard Erlanger, Bryant Garth, Jane
Larson, Elizabeth Mertz, Victoria Nourse & David Wilkins, Forward, Is It Time for a New Legal
Realism?, 2005 Wis. L. REV. 335. See also Greg Shaffer & Victoria Nourse, Varieties of New
Legal Realism: Can A New World Order Prompt A New Legal Theory? 95 CORNELL L. REV.
(forthcoming Nov. 2009) (manuscript on file with author).
255. As Mark Tushnet has put it, "[t]he idea of something that is simultaneously law and
political is obviously unfamiliar to U.S. constitutional theorists today .... " Mark Tushnet,
PopularConstitutionalismas PoliticalLaw, 81 CHI.-KENT L. REV. 991, 1005 (2006).
256. Relative to the alternatives, the "labor/socialism" explanation is far more
parsimonious. It explains more (with less) than do explanations based on liberty, strong property
rights, or a pro-business/anti-regulation bias, all of which should have led to the demise of vast
numbers of laws that were in fact upheld. Simply think of the decisions typically associated with
the "bad" Lochner era and one will find that these cases all involved unionization, wage, or hour
restrictions. See Adkins v. Children's Hosp., 261 U.S. 525 (1923) (minimum wage); Hammer v.
Dagenhart, 247 U.S. 251 (1918) (child labor); Coppage v. Kansas, 236 U.S. 1 (1915)
(unionization); Adair v. United States, 208 U.S. 161 (1908) (same); Muller v. Oregon, 208 U.S.
412 (1908) (hours restriction). These cases are typically vilified because majorities no longer see
regulations of child labor or minimum hours restrictions as anything but benign; to the extent the
Court thwarted these majoritarian measures, it reversed itself during the Depression and New Deal
era. United States v. Darby, 312 U.S. 100 (1941); W. Coast Hotel Co. v. Parrish, 300 U.S. 379
(1937); Nebbia v. New York, 291 U.S. 502 (1934). My argument is not that the Court was
invariably hostile to labor; in fact, the Court upheld important changes in employers' liability
laws. See, e.g., Second Employers' Liab. Cases, 223 U.S. 1 (1912). The Court did, however, reject
basic labor laws (wage, hour and union membership restrictions) that conservatives associated
with socialism. Fear of socialism also explains the Taft Court's hostility to price-fixing in the
1920s, which represents a significant percentage of the cases we now associate with the
substantive due process jurisprudence of that period. See, e.g., Ribnik v. McBride, 277 U.S. 350
(1928) (striking down regulation of prices charged by employment agencies); Williams v.
Standard Oil, 278 U.S. 235 (1928) (striking down regulation of gas prices); Tyson & Bros. v.
Banton, 273 U.S. 418 (1923) (striking down regulation of resale price of theater tickets).
grander principle: fighting the good fight against state socialism. Thus,
condensation offers both the justification for and the means of translating larger
political principles into legal doctrine.
Amplification: when Theodore Roosevelt picked on Lochner and talked of
"popular rights, ,,257 he did not use the legal definition of right. Within public
discourse and popular constitutionalism, terms change their meanings, and the
slippage can be extraordinary. Since the country's founding, the term "right"
has always been an American call to political arms. Rights in the public sphere
connote absolute privilege, but in the legal sphere, a right may be simply a
claim. There should be nothing unexpected in this, since the electorate can only
understand popular versions of legal concepts as they are expressed by popular
figures. Given the nature of the public audience, it is not surprising that
politicized versions of legal terms can end up far more simplified than their
legal counterparts. Simplification can in turn lead to the amplification of the
more modest claims of law.
Switching: Over time, Lochner's political tale became its legal tale and its
legal tale came to be seen as political. Theodore Roosevelt's view of strong
rights is now the standard view of Lochner-even within Supreme Court case
law.258 Meanwhile, the mainstream legal academy has claimed that a political
agenda motivates those who have attempted to revise the history by returning to
the doctrine. 259 How does this kind of switching occur? It occurs because the
structure of the Constitution supports simultaneous legal and popular review.
When public review reaches the height of its majoritarian success, it is
entrenched in the appointment process. When Felix Frankfurter, Robert
Jackson, and Hugo Black ascended to the Supreme Court in the late 1930s and
early 1940s, they took with them Theodore Roosevelt's story of Lochner.
2 60
Once
on the bench, they helped write that story into constitutional law.
The original realists were correct when they surmised that doctrine was
insufficient to explain judicial decision. But they were wrong to think of law
and politics as dichotomous, substitutable, and static. The original realists
troubled themselves with the "discovery" that judging was not simply doctrine.
The problem with this old realism is that it focused primarily on judging,
failing to recognize our Constitution as a larger system--one in which politics
257. Supra note 3.

258. See, e.g., MeadWestvaco Corp. v. Ill. Dep't of Revenue, 128 S. Ct. 1498, 1510 (2008)
(Thomas, J., concurring) ("Indeed, divining from the Fourteenth Amendment a right against
disproportionate taxation bears a striking resemblance to our long-rejected Lochner-era
precedents."); Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 93 (1980) ("If accepted, that claim
would represent a return to the era of Lochner v. New York... when common law rights were
also found immune from revision by State or Federal Government.").
259. Friedman, supra note 3, at 1387-88, 1400 (suggesting that the revisionist account is
impelled by a normative agenda).
260. See Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 90 n.23 (1948) (Frankfurter,
and law not only occur simultaneously, but actually influence each other in
ways that we have only begun to theorize. Any new realist approach must
understand what parallel history (a thick contextual history) suggests: that our
understanding of what is law and what is politics depends not only on
institutional constraints, but also on the dynamic relationship between law and
politics that is, in fact, decreed by our Constitution.
Once we come to believe that law and politics are not dichotomous, static
alternatives, it is possible to recognize without contradiction that law is not
determined by, but rather is influenced by, preferences, parties, larger
ideologies, and other factors. Then and only then is it possible to give up the
nihilistic and extreme position, taken by some early realists, that doctrine and
rights do not matter because they are simply the product of naked preference.
Then and only then is it possible to name the political theories that have failed
law, such as laissez-faire economics. Then and only then is it possible to take
the radically moderate position suggested by this double history, which is that
realism in constitutional law requires the recognition that all law-including
the law of rights-requires an understanding not only of legal doctrine but also
of the history of our majoritarian political life.
C. ConstitutionalStructureand the Simultaneity of Popular

and Judicial Constitutionalism
The simultaneity of the two Lochner stories implies two forms of
simultaneous constitutional review structurally determined by the Constitution
itself. We are all familiar with the notion of a court exercising judicial review, a
formalized process by which judges, using elite discourse, may strike down a
legislative action. The Court exercised such review when it struck down the
New York hours law in Lochner. Simultaneously, a popular review process
occurred when Theodore Roosevelt made Lochner a public cause c6lbre. Over
time, this form of popular review won: Lochner was overruled.
The simultaneity story offers both good and bad news for those who
support popular constitutionalism. 26 1 The good news is that historical examples,
like the story told here, demonstrate that popular constitutionalism is not, as
some take it, simply an ancient form of judicial review.262 The bad news is that
261. See LARRY KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND
JUDICIAL REVIEW (2004); MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE
COURTS (1999) [hereinafter TUSHNET, TAKING THE CONSTITUTION]. There are a variety of
positions on popular constitutionalism; some emphasize the dialogic aspects of an inter-branch
constitutionalism, and others emphasize social movements. See, e.g., Robert Post & Reva Siegel,
PopularConstitutionalism, Departmentalism, and Judicial Supremacy, 92 CALIF. L. REV. 1027
(2004) (social movements); Tushnet, supra note 255 (dialogic analysis). My own view is that a
form of popular constitutionalism, dualist review, is required by constitutional structure. V. F.
Nourse, Toward a New ConstitutionalAnatomy, 56 STAN. L. REV. 835 (2000); Nourse, Vertical
Separation,supra note 135.
262. Kramer seems to suggest that popular constitutionalism has died, a point that others
popular constitutionalism may not have the radical implications that some hope
for; it may not take the Constitution away from the courts.263 The truth is that
popular constitutionalism in a less radical form happens all the time: if there is
a political incentive to attack the Court, the Court's power of review will be
attacked. History shows that on any highly salient issue-not necessarily ones
that are legally controversial but rather those that affect people's lives-the
Court's constitutional decisions will be debated in the public square.
Our constitutional structure creates a proliferation of voices and allows
numerous places for the exercise of political dissent and deliberation. If one
does not like what the President does, one can petition the House, the Senate, or
the courts. Similarly, if one does not like what the courts have done, one can
petition the House, the Senate, the President, or the states. Courts and
politicians operate simultaneously on issues. This structure creates the
continuing inevitability of popular constitutionalism, since "the electoral
connection" to the people 264gives politicians the incentive to make popular
constitutionalist arguments.
Theodore Roosevelt targeted Lochner because he had a constitutional
incentive to do so. One must convince vast majorities to win the presidency,
and this was Roosevelt's purpose in urging majorities to rise up against a
selfish Court, using the Bakeshop Case as a symbol. 22665 As a legal matter,
Roosevelt was distorting the Court's record; Charles Warren was correct that
the Court from 1900 to 1920 was mildly progressive. But as a constitutional
matter, Roosevelt was doing what he was supposed to be doing: mobilizing
majorities to proclaim that the Court's most salient decision was deeply
countermajoritarian. In this respect, he would prove to be prescient. Almost
twenty years later, Franklin Roosevelt completed what Theodore Roosevelt had
begun: he gained a public mandate that supported labor and used it to force the
266
Court to reverse itself.
Popular deliberation of constitutional issues is not a radical oddity, 267 but
reject. Compare KRAMER, supra note 261, with William E. Forbath, Reflections on the Dark Side,
The Progressive Constitutional Imagination, and the Enduring Role of Judicial Finality in
Popular Understandingsof PopularSelf-Rule, 81 CHI.-KENT L. REV. 967 (2006). I would go
further and argue that popular constitutionalism is structurally determined, even if it rarely works
to "reverse" any particular decision and even if the public remains, as Forbath rightly notes,
wedded to a form of judicial finality. See NOURSE, supra note 18, at ch. 7 (recounting in detail the
hostility of the public to FDR's court-packing plan despite their deep disagreement with the
Court's decisions).
263. TUSHNET, TAKING THE CONSTITUTION, supra note 261.
264. Nourse, Vertical Separation,supra note 135, at 781-88.
265. In this sense, I agree with William Forbath that "[p]opular constitutional politics has
never been motivated" by the principle of popular constitutionalism so much as the immediate
political demands of the hour. Forbath, supra note 262, at 968.
266. United States v. Darby, 312 U.S. 100 (1941) (reversing the child labor case-Hammer
v. Dagenhart, 247 U.S. 251 (1918)); W. Coast Hotel v. Parrish, 300 U.S. 379 (1937) (reversing
decision on minimum wage).
267. Under an extreme view of popular constitutionalism, all constitutional decisions
a constitutional inevitability in cases in which the Court's results violate

prevalent majoritarian sentiments. This is the great beauty and sorrow of our
constitutional structure. 26 It is a beauty since the people do have the power to
reign in the Court-eventually. It is a sorrow because popular resistance may
be latent for long periods of time, waiting for politicians to take on the Court
through transformative appointments, presidential clashes, social movements,
or even a formal amendment. Regardless, history reveals that popular
constitutionalism and judicial review do not exclude each other. Theodore
Roosevelt's campaign against Lochner is proof of that proposition.
D. The Future ofSubstantive Due Process

For over fifty years, from 1880 until 1937, American constitutional
jurisprudence was neither particularly textual nor particularly focused on
original intent; indeed, it was not focused on interpretation as constitutionalists
are today. The country survived, railroads and markets grew, the Jazz Age
flourished, and the states experimented with regulation. It was the high age of
common law constitutionalism, one whose principal concept was neither
precise nor enumerated: the police power. Today, we live in a different age, one
in which many associate the flexibility of common law constitutionalism with
danger and tout textualism as the great antidote to the failures of the past.269
Unlike those who would insist that substantive due process originated
with Lochner and its kin, I believe it is an invented tradition,270 created decades
after Lochner was decided. Under the old juristic model used in Lochner, courts
would not have asked whether there was a right to die or a right of privacy.
They would have assumed such rights were reserved as liberty, making the
question of defining rights irrelevant. Then, doubts were resolved in favor of a
right and the principal inquiry was whether the police power supported
regulation. In contrast, today's substantive due process cases begin by inquiring
into right, not power; assert a strong rather than weak idea of right; and idealize
enumeration over reserved liberty. None of this controlled the doctrine of old.
In short, there is nothing remotely Lochnerian about the substantive due
process cases of the post-1960 period. This is a descriptive claim, not a
should be taken from the Court and given to the people, a procedure that would appear to sanction
majoritarian and illiberal decisions from Japanese concentration camps to eugenics to, in the worst
case scenario, a decision to one day disband the Congress or dismiss the President. This is what
causes concern with the theory.
268. The first person to recognize this was, in my view, ACKERMAN, supra note 40, at 269.
Whatever one thinks of Ackerman's history, he is right that the amendment process is a quite
limited means of constitutional change and that its difficulty has forced the use of alternate means:
the separation of powers.
269. See generally SCALIA, supra note 66 (arguing for a closer historical textual reading);
see also Akhil R. Amar, Intratextualism, 112 HARV. L. REV. 747 (1999) (emphasizing not only
textual, but intratextual, analysis).
270. See ERIC HOBSBAWM & TERENCE RANGER, THE INVENTION OF TRADITION (10th ed.
2003).
normative one: today's substantive due process cases may be wrong, but they
are not wrong because they apply the run-of-the-mill doctrine of the year 1905.
The following hypothetical further supports this proposition. If we were to
revive Lochnerian notions of right today, most American citizens and judges
would find rights dangerously weak rather than overly strong. Under the police
power analysis, for example, Congress or the states would have the power to
regulate pornography and corporate speech, since harm to the public welfare
could trump rights-specifically free speech rights in this scenario. At the same
time, the police power might be used to justify everything from eugenics
(which was deemed a "health matter"), to a ban on political speech, to
torture. 27'
In my own view, rights are vessels of history in two senses of the word.
They are vessels in the sense that they are lessons of the past that help guide
our future. They are also vessels in the sense that they are containers of
memory, and in particular, memories of grave political danger, adopted by
majorities to prevent themselves from repeating the lessons they have learned.
The rights invoked in the early part of the twentieth century condensed widely
held, majoritarian fears of socialism and communism (that wage and hour
restrictions and minimum prices would lead to state-sponsored socialism). This
governmental fear, based on the taking of private property, lent no urgency to
rights outside the economic sphere, whether they were rights of religion or
speech or privacy. The rights invoked after World War II reflected entirely
different political fears-fears of fascism's racism, religious persecution, and
suppression of speech. 22772 If this is correct, when one loses history, whether
modem or ancient, one loses the meaning that defines the scope of right. And
as shown earlier, we have lost the real history of Lochner.
What does this loss mean for the future of substantive due process? It
means that courts today must acknowledge that strong personal and civil
rights-rights subject to strict scrutiny--do not come from the Lochner era, but
instead the period immediately prior to and after World War I. In the late
1930s, as Hitler and Mussolini engulfed Europe, and the Supreme Court reeled
from the court-packing plan, civil and personal rights appeared more pressing
than they had before. This is not a history of which we should be ashamed. As I
have explained at greater length elsewhere, 273 it is the history of a Court
seeking to resist the dangers of Fascism, and it should be celebrated. Put in
other words, substantive due process-in the sense of applying strict scrutiny,
271. See, e.g., NOURSE, supra note 18, at ch. 7; Buck v. Bell, 274 U.S. 200 (1927).
272. See PRIMus, supra note 28, at 180 ("It is well established that a major change in
American conceptions of rights occurred sometime between the 1920s and the 1960s, but many
scholars fail to give sufficient emphasis to anti-totalitarianism and especially anti-Nazism when
trying to account for that transformation.").
273. See NOURSE, supra note 18, at ch. 7 (explaining this history and how it begins before
World War II).
strong rights to the states via the due process clause-began with neither the
274
Lochner Court nor the Warren Court.
In this sense, the conventional association of substantive due process with
judicial activism invites reconsideration in three ways. First, substantive due
process is frequently viewed as tainted because it is associated with grave
judicial error, but if we associate it with correct decisions embracing strong
civil and personal rights against fears of fascism, then the doctrine should not
carry the same historical sting. Second, substantive due process is today
associated with the dangers of unenumerated rights, 275 but this question was not
one that would have been asked in 1905; at least for the Lochner generation,
enumeration was considered a danger, not a virtue, for it limited the liberty a
court could protect.276 Third, substantive due process is generally considered a
tainted doctrine because it is countermajoritarian. However, it is not at all clear
that the early manifestations of substantive due process were in fact counter-
majoritarian; instead, they were an example of what Derrick Bell has called
"convergence," where majorities are ready to recognize the rights of
minorities.277
That more extensive and stronger rights may have emerged from World
War II does not mean, however, that all is well with substantive due process.
Every historical transformation builds future memories by forgetting. Today,
we have a notion of rights that is highly inflexible because all depends upon a
process of rights-definition. By contrast, the old police power doctrine
imagined that no one had an absolute right if its exercise interfered with the
rights of others or with public rights. It required a balance between the needs of
individuals and the needs of the common welfare. The need for such a balance
has not disappeared: one can see its resurgence in a number of areas of current
substantive due process law. For example, abortion law has moved from a
strong "right to privacy" to a much more moderate "undue burden" test. 278 The
affirmative action cases, where strict scrutiny was once very strict but now no
longer is, further exemplify this trend. One can see the old idea of reserved
rights emerging in cases such as Lawrence v. Texas,279 where the Court refused
28
to enumerate a right and instead spoke of liberty. 0
274. See, e.g., Korematsu v. United States, 323 U.S. 214 (1944); Skinner v. Oklahoma, 316
U.S. 535 (1942); United States v. Carolene Prods. Co., 304 U.S. 144 (1938).
275. See Roe v. Wade, 410 U.S. 113 (1973); Griswold v. Connecticut, 381 U.S. 479
(1965).
276. See supra text accompanying notes 61-65.
277. Derrick A. Bell, Jr., Comment, Brown v. Board of Education and the Interest-
Convergence Dilemma, 93 HARV. L. REV. 518, 523 (1980).
278. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 874 (1992); Roe, 410 U.S. at
153.
279. 539 U.S. 558 (2003).
280. Id. at 578-79.
CONCLUSION
Both liberals and conservatives have, for too long, embraced a false
history of Lochner. In the 1980s, conservatives like Robert Bork charged that
substantive due process was a "momentous sham" that allowed courts to
politicize rights discourse. 281 Liberals did precious little to respond to this
charge; indeed, they generally accepted it. 282 To the charge that substantive due
process was a "momentous sham," no one replied that the historical premise of
the argument was incorrect. No one led the battle to reclaim the memories of
the greatest generation, which used the Due Process Clause to make rights of
speech and religion strong against fears of fascism, rights that vast majorities
now support. And because no one led that battle, a false history was left intact
to be revived at the end of the century. By the 1990s, neoconservatives claimed
that strong rights began with Lochner-thatLochner correctly invoked a strong
property right, and that this meant that vast amounts of regulation should be
attacked as takings of property. 283 History had come full circle. A dream of
laissez-faire emerged at the end of the twentieth century just as it had at the
beginning. What was lost was all that happened in between: two wars, a
Depression, and a constitutional revolution.
281. I am referring here to the fact that the Fourteenth Amendment's Due Process Clause
was essential to applying the rights of speech and religion to actions by states. Very few people
today, however, believe that states may take away the right to speak or to exercise religion; in
short, they are unlikely to take the position that this use of the Fourteenth Amendment was an
improper use of substantive due process. On Bork, see supra note 34.
282. See BORK, supra note 34; Ely, supra note 2.
283. See RICHARD EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT
DOMAIN (1985).

Nourse, Victoria F. - A Tale of Two Lochners - The Untold History of Substantive Due Process and The Idea of Fundamental Rights

Uploaded by

Copyright:

Available Formats

Nourse, Victoria F. - A Tale of Two Lochners - The Untold History of Substantive Due Process and The Idea of Fundamental Rights

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Nourse, Victoria F. - A Tale of Two Lochners - The Untold History of Substantive Due Process and The Idea of Fundamental Rights

Uploaded by

Copyright:

Available Formats

A Tale of Two Lochners: The Untold

History of Substantive Due Process and

To say that the Supreme Court's decision in Lochner v. New York, is

4. Gerald Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A

those theories grounded, respectively, in law and in politics. 15 Remembering

"All rights tend to declare themselves absolute to their logical extreme.

Critiques of Lochner abound. Traditionally, Lochner has been associated,

Sunstein argued that Lochner failed to distinguish between action and

38. Sunstein, supra note 12, at 878.

"The guaranties of life, liberty and property contained in the Federal

To understand the forgotten constitutional discourse of the early twentieth

reasonable, and appropriate exercise of the policepower of the State... ?,,51 So

A. The PolicePower in the Non-Mandarin Case

64. Id. at 139.

remembered for his laissez-faire 74 views) emphatically asserted the

74. Lawrence M. Friedman, Freedom of Contractand OccupationalLicensing 1890-1910:

to legislative changes of common law rules. 8 1 In Chicago, Burlington & Quincy

B. Lochner and the JuristicStory

86. Williams v. Arkansas, 217 U.S. 79, 90(1910).

The answer to that question depended upon a categorical judgment that

91. See MORTON HORWITz, THE TRANSFORMATION OF AMERICAN LAW 1870-1960, at 15

105. Id. at 884 n.76.

C. Conventional Practicein the Lochner Era

Burdick emphasized that, although there had been some hostility to

110. Schmidinger v. City ofChi., 226 U.S. 578, 587 (1913).

prevent individuals from joining unions,' 38 restricted the ability of unions to

government. Conservatives and progressives alike feared trade unionism as the

liberty, right to contract, and "laissez-faire" with actual legal doctrine.

A. Theodore Roosevelt and the Originsof the Second Lochner Tale

court is an obstacle to what they call "social justice" legislation when

200. Fitch, supra note 199, at 116.

B. The Academic Elite and the PopularStory

How are we to understand the relationship between the juristic and

A. What Revisionists and Counter-revisionistsWrongly Share

for that of the legislator as to what is fundamentally just.").

ancient concept of "class legislation," which aimed to achieve equality of

238. See GILLMAN, supra note 11.

246. See sources cited supra note 18.

on an essentially internal misreading of Lochner as a strong rights case (one 251

B. After Law or Politics: Principlesfor a New Legal Realism

257. Supra note 3.

C. ConstitutionalStructureand the Simultaneity of Popular

a constitutional inevitability in cases in which the Court's results violate

D. The Future ofSubstantive Due Process

You might also like