Chapter 1’s rendition of the consensus view about Lochner-era substantive due process had a rough factual-normative organization. The chapter first presented a standard descriptive picture of those decisions. In this picture, twenty or so exemplary cases typically appear. Several of them involve employment regulations that were struck down because they restricted freedom of contract. Often the standard account implicitly suggests that the old Court’s other substantive due process decisions resemble the twenty-odd cases presented. It also asserts that freedom of contract was central to Lochner-era substantive due process. The standard picture further suggests that the doctrine was a potent check on government regulation of the economy. This belief is reflected in the common statement that the old Court sustained substantive due process challenges on some 200 occasions. It may also be reflected in the standard picture’s suggested ratio of successful to unsuccessful substantive due process challenges. Although it usually is conceded that this ratio is less than one, one sometimes gets the impression that the ratio is not much less than one. A final element in the standard picture appears late in the chapter, when it develops the familiar belief that Justice Oliver Wendell Holmes, Jr. was a regular dissenter from the old Court’s substantive due process decisions.
These descriptive matters, however, were not the main concern of Chapter 1. Instead, much of that chapter developed three standard normative critiques of Lochner-era substantive due process. One of these attacks claims that the doctrine lets courts usurp powers that properly reside in legislatures, a usurpation sanctioned by neither the text nor the history of the due process clauses. The other two critiques share a com