In West Coast Hotel v. Parrish (1937), the Supreme Court upheld a minimum wage law for women, reversing two earlier contrary precedents. West Coast Hotel is often seen as the end of the so-called “Lochner era.” Some conservatives celebrate West Coast Hotel, not simply as a victory against “judicial activism,” but because the Court purportedly restored the original meaning of the Due Process Clause of the Fourteenth Amendment that had been perverted by proponents of the liberty of contract doctrine.
As I pointed out in Rehabilitating Lochner, the irony of the conservative originalist critique of Lochner is that proponents of liberty of contract were themselves originalists, trying to adhere to what they saw as the constitutional understandings of the Fourteenth Amendment’s Framers regarding individual liberty and the scope of the police power. Originalist sentiments expressed by proponents of liberty of contract sometimes sound quite modern. Consider Justice Sutherland’s dissent in West Coast Hotel v. Parrish: “to say … that the words of the Constitution mean today what they did not mean when written—that is, that they do not apply to a situation now to which they would have applied then—is to rob that instrument of the essential element which continues it in force as the people have made it until they, and not their official agents, have made it otherwise.” I go on to note that more often, the early twentieth century version of originalism differed in significant ways from modern conservative originalism, and was generally neither well-theorized nor well-explained by its judicial adherents, but it was originalism nevertheless. Liberty of Contract’s Progressive opponents, by contrast, were explicitly anti-originalist and pioneered the idea of the “Living Constitution.”
Distinguished University of Virginia legal historian G. Edward White makes a related point in the latest issue of the Yale Law Journal Online. He argues that the majority opinion in West Coast Hotel represents the forces of Living Constitutionalism while the dissent relies on originalism: “West Coast Hotel is one of the early landmark cases of another narrative of twentieth- and twenty-first-century constitutional history, one characterized by a debate about whether the Constitution adapts to change or remains an embodiment of foundational principles. In that narrative, Chief Justice Hughes’s exploration of the changing context of judicial decisionmaking represents living Constitutionalism, and Justice Sutherland’s insistence that “the words of the Constitution mean today what they . . . mean[t] when written” is an example of originalism. White’s essay is short, and, if this sort of thing interests you, well worth reading.