In comments to some of my recent posts, some commenters have suggested that few people nowadays get especially worked up about Lochner v. New York. Rather, it’s Bush v. Gore, or Korematsu, or Citizens United, that raises hackles, with Lochner seen perhaps as a quaint anachronism with little modern relevance. I agree that over time, and thanks in part to revisionist scholarship (including my own), Lochner’s salience to public constitutional debate has declined somewhat since its heyday in approximately the late 1980s–not coincidentally, the time period when I went to law school and became fascinated by the (negative) fascination with Lochner.
But that hardly means that Lochnerm has lost all, or even most of it potency. One could cite Supreme Court opinions for this proposition, but I instead call as a witness a former Senator from Illinois and constitutional law professor, an obscure fellow named Barack Obama. Here’s Obama in June 2005, opposing the nomination of Janice Rogers Brown to the D.C. Circuit. Dubious or inaccurate historical statements reflecting common misuses of Lochner as a historical symbol are highlighted in bold, and are annotated below:
For those who pay attention to legal argument, one of the things that is most troubling is Justice Brown’s approval of the Lochner era of the Supreme Court. In the Lochner case, and in a whole series of cases prior to Lochner being overturned, the Supreme Court consistently overturned basic measures like minimum wage laws, child labor safety laws, and rights to organize, deeming those laws as somehow violating a constitutional right to private property. The basic argument in Lochner was you can’t regulate the free market because it is going to constrain people’s use of their private property. Keep in mind that that same judicial