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

By Michael J. Phillips | Go to book overview

Preface

Late in the 1980s, I wrote a fairly conventional article on the substantive due process decisions of the so-called Lochner Court. The reference, of course, is to the U.S. Supreme Court’s 1905 decision in Lochner v. New York,1 in which it struck down a New York maximum-hours law on due process grounds. For the most part, the article focused on Lochner itself and on the twenty or so other decisions that are widely thought to exemplify the old Court of the 1890s through the mid-1930s. The experience left me with some lingering questions. What else was back there? That is, what were the Lochner Court’s other substantive due process decisions like? How many of them were there? How many times did the Court uphold government action that was challenged on substantive due process grounds?

For some time, there has been a rough consensus on the answers to these questions. The old Court, says the consensus, used due process to strike down substantive government action on about 200 occasions. Central to these cases was freedom of contract’s insertion within the “liberty” protected by the Fifth and Fourteenth Amendments’ due process clauses. Although it is not explicit on the point, the consensus suggests that, like the twenty or so exemplary decisions it does discuss, most of these 200 cases involved Progressive social legislation intended to protect economically powerless people against the vicissitudes of industrialization and the depredations of big business. However, the consensus concedes that the old Court rejected more substantive due process challenges than it granted, although the degree to which that was true is unclear.

Accompanying this standard descriptive picture of Lochner-era substantive due process is a normative critique. Today, few people embrace

-vii-

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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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