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

By Michael J. Phillips | Go to book overview

Chapter 4

The Question of Unequal Bargaining Power

Moral philosophers sometimes distinguish between deontological and consequentialist ethical theories. Both tell us how to evaluate the rightness or wrongness of actions. Strict or strong deontological theories say that the morality of actions is determined by those actions’ intrinsic nature, or by the motives that inspired them, but never by their consequences. 1 The classic example is the ethical philosophy of Immanuel Kant. Early in his Foundations of the Metaphysics of Morals, Kant declared that “[n]othing in the world—indeed nothing even beyond the world—can possibly be conceived which could be called good without qualification except a GOOD WILL.” 2 “The good will,” he continued, “is not good because of what it effects or accomplishes or because of its competence to achieve some intended end; it is good only because of the willing (i.e., it is good in itself).” Even if it was utterly ineffectual, Kant concluded, the good will still “would sparkle like a jewel all by itself, as something that had its full worth in itself.”

Pronouncements like Kant’s rub some people the wrong way. Their reaction to such statements resembles the rage many feel when, after some fool’s blunders have brought disaster to the community, a defender chirps the inevitable “but he meant well.” Rather than judging the worth of actions by their nature or the motives that inspired them, such people look only at their consequences. In moral theory, the main example is utilitarianism, most of whose many varieties evaluate actions by their tendency to promote utility. For this reason, utilitarianism is called a consequentialist moral theory.

To consequentialist eyes, Chapter 3’s attack on the claim that the Lochner Court acted as business’s agent no doubt looks like a puny “they

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

Table of contents

  • Title Page iii
  • Contents v
  • Preface vii
  • Notes x
  • Chapter 1 - The Conventional Wisdom 1
  • Chapter 2 - An Overview of Lochner-Era Substantive Due Process 31
  • Chapter 3 - What Motivated the Old Court? 91
  • Chapter 4 - The Question of Unequal Bargaining Power 125
  • Notes 151
  • Chapter 5 - The Originalist Challenge 155
  • Chapter 6 - Summing Up and Looking Ahead 177
  • Selected Bibiliography 201
  • Table of Cases 205
  • Index 207
  • About the Author 211
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