I’ve Posted the Introduction to Rehabilitating Lochner

on SSRN. Here is the abstract:

This paper is the Introduction to David E. Bernstein, Rehabilitating Lochner: Defending Individual Rights against Progressive Reform (University of Chicago Press 2011), which will be officially released in May [but is already shipping from Amazon]. The Introduction makes the following points, which are elaborated upon and defended in the body of the book.

The standard account of the rise, fall, and influence of the liberty of contract doctrine is inaccurate, unfair, and anachronistic. Lochner has been treated as a unique example of constitutional pathology to serve the felt rhetorical needs of advocates for various theories of constitutional law, not because the decision itself was so extraordinary, its consequences so bad, or its anti-statist presumptions so clearly expelled from modern constitutional law.

The liberty of contract doctrine was grounded in precedent and the venerable natural rights tradition.

Progressive jurists who opposed liberty of contract had an extreme pro-government ideology, and typically opposed any robust constitutional protection of individual or minority rights.

The Supreme Court’s liberty of contract advocates, by contrast, were sufficiently committed to the notion of inherent limits on government power and a limited police power that they voted for liberal results across a wide range of individual and civil rights cases.

The Lochner line of cases pioneered the protection of the right of women to compete with men for employment free from sex-based regulations; the right of African Americans to exercise liberty and property rights free from Jim Crow legislation; and civil liberties against the states ranging from freedom of expression to the right to choose a private school education for one’s children.

Many post-New Deal liberal developments in Fourteenth Amendment jurisprudence can trace their origins to Lochner and its progeny. More generally, modern Fourteenth Amendment jurisprudence owes at least as much to the liberty of contract proponents’ libertarian values as to its pro-regulation Progressive opponents.

The history of the liberty of contract doctrine should be assessed more objectively and in line with modern sensibilities, and Lochner should be removed from the anti-canon and treated like a normal, albeit controversial, case.

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