Very late in his life, Wittgenstein speculated whether “all enquiry on our part is set so as to exempt certain propositions from doubt, if they are ever formulated.” 1 The clear inference was that the truth of such propositions is never brought into question: “They lie apart from the route travelled by inquiry.” 2 The propositions comprising the consensus wisdom on Lochner-era substantive due process may not enjoy quite this degree of acceptance, but they come close. They form part of the toolkit of uncontested truths carried around by educated Americans. Just before I wrote this chapter, an article in a well-known neoconservative monthly forcefully reminded me of how entrenched these ideas remain. Lochner and like cases, the author maintained, suggest that “the Supreme Court did not think the New York legislature could regulate economic life at all.” 3 That case, he continued, “threatened a wholesale takeover of political authority by the federal courts.” 4
These statements, particularly the first, are demonstrably false, but they continue to be widely believed. The same is true, albeit in lesser degree, for the whole body of beliefs forming the standard picture and the standard critique of Lochner-era substantive due process. This chapter begins by restating that picture and that critique and by showing how preceding chapters have undermined them. Then I speculate about why these illusions emerged and continue to persuade. After that, I take aim at another assumption whose acceptance is as widespread as it is unthinking: the notorious “double standard” under which “personal” rights gets considerable constitutional protection and economic rights relatively little. One conclusion from this attack is that, under the tests the Supreme Court uses to determine which rights are fundamental, some economic
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Publication information: Book title: The Lochner Court, Myth and Reality:Substantive Due Process from the 1890s to the 1930s. Contributors: Michael J. Phillips - Author. Publisher: Praeger. Place of publication: Westport, CT. Publication year: 2001. Page number: 177.
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