The Lochner Court, Myth and Reality: Substantive Due Process from the 1890s to the 1930s

Chapter 1 tried to state the conventional wisdom about Lochner-era substantive due process from the viewpoint that wisdom represents. How well it succeeded is for readers to judge. But if I failed to convey complete conviction, this is because I lack it. In my view, the conventional wisdom about old-time economic substantive due process is misleading at best and a caricature at worst. To be more precise, some of that wisdom is true and significant, some is technically accurate but misleading, some is debatable, and some is just plain false. Overall, I think, the standard views about Lochner-era substantive due process mislead more than they instruct.

This book tries to detail these charges. In order for that to occur, we first need an overview of Lochner-era substantive due process that sketches the number of times the doctrine was used successfully, the number of times it failed, and the kinds of government action at issue in these cases. This chapter provides such an overview—one that so far as I know has not appeared until now. ¹ In the process, the chapter critiques the standard descriptive picture of Lochner-era substantive due process developed in Chapter 1. It begins by seeking the origins of the belief that the Supreme Court struck down some 200 laws on substantive due process grounds. Then the chapter whittles that list down by eliminating or downplaying two classes of cases contained within our list of approximately 200: (1) those that simply do not involve substantive due process and (2) those that are peripheral or penumbral applications of substantive due process because they incorporate values native to other constitutional provisions. After that, the chapter lays out substantive due process’s central, core applications during the first third of the twentieth

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