Lochner's Legacy's Legacy

Avoiding remains a primary focus of constitutional law and constitutional scholarship. Debate continues, however, regarding just what that error was. In his oft-cited 1987 Columbia Law Review article, Lochner's Legacy,1 Cass Sunstein argues that the Lochner era Court's primary error was not its purported activism. Rather, he contends the primary problem with Lochner was the Justices' belief that market ordering under the common law was part of nature rather than a legal construct, and that it formed a from which measure the constitutionality of state action, rendering redistributive regulations unconstitutional. The understanding of the Lochner era adopted by Sunstein in Lochner's Legacy has been widely accepted in legal circles, including by four current Supreme Court Justices. As conservative and liberal Justices continue battle over the meaning of Lochner and its significance for modern constitutional jurisprudence, the liberal justices have adopted Lochner's Legacy's historical thesis. What is remarkable about Lochner's Legacy's massive influence on the current understanding of Lochner is how little evidence Sunstein provides for his historical claims. Beyond Lochner itself, the article cites only ten out of hundreds of relevant Lochner era cases, and discusses only two of them in any detail. Even the discussion of these two cases is tendentious. Sunstein's argument has nevertheless thrived because until now no one has systematically scrutinized its historical underpinnings. This Article examines three major historical claims Lochner's Legacy makes about the Lochner era: (1) that the Lochner era Supreme Court understood the common law to be a part of nature rather than a legal construct ;2 (2) that the Lochner era Court sought preserve what it saw as the natural, status quo distribution of wealth against redistributive regulations; and (3) that the abandonment of Lochner resulted from the Supreme Court's recognition that the problem with Lochner and its progeny was that the Court in those decisions mistakenly treated government inaction as the baseline determine the constitutionality of government regulations. I argue that all three of these propositions are demonstrably incorrect. Lochner's Legacy provides a particularly telling example of the danger of applying an ideological construct constitutional history for presentist purposes, while ignoring or neglecting contrary evidence. I. Introduction The ghost of Lochner v. New York3 haunts American constitutional law. Almost one hundred years after the Supreme Court decided the case, Lochner and its progeny remain the touchstone of judicial error.4 Avoiding Lochner's mistake is the central obsession of modern constitutional law.5 Supreme Court Justices are at pains deny that their opinions declaring laws unconstitutional are Lochnerian,6 while dissenting Justices use Lochner as an epithet criticize their colleagues. Conservative Justices accuse their colleagues of Lochnerizing when the Court curtails abortion restrictions7 or restrictions on consensual sexual activities,8 while liberal Justices respond in kind when property regulations are declared unconstitutional under the Takings Clause,9 and when the Court uses the Commerce Clause10 or the Eleventh Amendment11 invalidate federal laws. On issues that divide the Court along atypical lines, such as the scope of the dormant commerce clause, ecumenical groups of dissenting Justices accuse their colleagues of Lochnerizing when the majority invalidates government regulations.12 Despite-or perhaps because of-Lochner's importance in American constitutional consciousness, much controversy remains over just how the Lochner Court erred. The traditional view, first expressed in Justice Oliver Wendell Holmes's famous dissent in Lochner,13 is that the Court exceeded its legitimate judicial role by reading the right of liberty of contract into the Fourteenth Amendment's Due Process Clause, despite the absence of textual support for this right. …