Rehabilitating Lochner, Conclusion:
The longstanding myth of a wildly activist, reactionary Supreme Court imposing a grossly unpopular laissez-faire ideology on the American people on behalf of large corporate interests—with little concern for precedent, constitutional text, or individual or minority rights—is far removed from historical reality.
The academics who invented the prevalent mythology likely sought, consciously or not, to justify their preferred political outcomes. They promoted the notion that the liberty of contract cases had no origins in American tradition or in American constitutional thought, and were instead simply stalking horses for the economic elite’s interests. This allowed advocates of the revolutionary New Deal and post-New Deal changes in constitutional interpretation to lump all the decisions of the pre-New Deal Supreme Court together.
Scores of books and articles state or imply that there is no significant difference between the “Lochner era” commerce clause cases, due process cases, non-delegation cases, and so on. Rather, they purportedly were all different manifestations of the Court’s reactionary “laissez-faire” jurisprudence. Conflating these doctrines allowed legal scholars—and, for that matter, Supreme Court Justices—to elide debate over the meaning of the relevant constitutional provisions, and to reject out of hand the notion that the Old Court may have interpreted some of them correctly as a matter of text and history.
Consider that quote in light of the following from an amicus brief filed by Professors Walter Dellinger and H. Jefferson Powell in the Eleventh Circuit on behalf of Harry Reid and Nancy Pelosi. The brief urges reversal of the district court’s opinion invalidating Obamacare’s individual mandate as beyond Congress’s Commerce Clause authority:
Appellees’ attempt to divide economic behavior into “activities” that Congress can regulate and ‘inactivity” that it cannot is of course reminiscent of the theory of economic substantive due process associated with the famous decision in Lochner v. United States, 198 U.S. 45 (1905).
To which I can only respond, “huh”? I can’t think of any “economic substantive due process” case that even hinted that it relied on an activity/inactivity distinction. Nor can I think of any other way the activity/inactivity distinction is reminiscent of the Lochner line of cases, unless one accepts the bogus post-New Deal conflation of all doctrines that historically limited government regulatory power. One might just as well say that an Ex Post Facto Clause argument is reminiscent of Roe v. Wade.
The phrase “of course” does not save the brief’s Lochner argument from being a complete non sequitor, a transparent attempt to try to tie the lower court’s Commerce Clause ruling to Lochner, simply because Lochner is disreputable, and, as noted above, to try to “elide debate over the meaning” of the Commerce Clause.
We need a Godwin’s Law for constitutional litigation: the first side to raise Lochner, especially in a case not involving the Due Process Clause, automatically loses.
Irony alert: Writing in the Cato Supreme Court Review in 2004, Dellinger stated, “The disparagement by some liberal scholars and jurists of the constitutional protection of economic rights weakens the constitutional foundations of personal liberty.”