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Thomas Colby and Peter J. Smith, The Return of Lochner, 100 Cornell L. Rev. 527 (2015).

Lochner v. New York (1905) has long been one of the most widely reviled decisions in Supreme Court history. The Court’s 1905 ruling striking down a New York maximum hours law for bakers under the Due Process Clause of the Fourteenth Amendment has been routinely denounced as callous, unjust, and based on blatantly fallacious legal reasoning. It is one of the leading members of the “anti-canon” of important Supreme Court decisions that almost all right-thinking people believe to be wrong. Thomas Colby and Peter Smith’s important new article argues that the longstanding dominance of this view of Lochner has begun to erode, at least among conservatives.

Colby and Smith provide an excellent account of why this trend began, and how it compares with previous developments in conservative and liberal legal thought. As they emphasize, even when the anti-Lochner consensus was at its height, liberals and conservatives opposed the decision for different reasons. For liberals, it became the leading symbol of an era in which the Supreme Court improperly intervened to shield “laissez-faire” economic policy against government interventions intended to protect workers and the poor. Especially after the New Deal revolution in constitutional law, they drew the lesson that Lochner was wrong because courts should generally stay out of “economic” issues, especially in cases where judicial intervention is sought for the benefit of the wealthy and business interests.

By contrast, most conservatives never objected to judicial protection of economic rights, as such, and many had always thought that labor legislation like that struck down in Lochner does more harm than good. For them, the error of Lochner lay in the fact that it protected an unenumerated right. Worse, it was a “substantive due process” right, which conservatives considered oxymoronic. They also associated substantive due process with the hated socially liberal decisions of the Warren and Burger courts, especially Roe v. Wade. Finally—and, to Colby and Smith, most important—conservative constitutional theorists believed that Lochner was wrong because it could not be squared with originalism, the dominant approach to constitutional interpretation on the right over the last several decades.

Over the last two decades, Colby and Smith explain, several factors have moved right of center constitutional thought away from the anti-Lochner consensus. One, of course, is that conservative and libertarian free market advocates generally disapprove of labor regulations like the ones upheld in Lochner. Free market economists and legal scholars have long argued that maximum hours laws actually harm workers by reducing their income and, in some cases, increasing unemployment. The law at issue in Lochner itself may well have been enacted at the behest of large bakeries and powerful labor unions dominated by native-born workers, for the purpose of stifling competition by smaller bakeries that employed mostly recent immigrants.

But this cannot, by itself, account for the evolution in conservative attitudes towards Lochner. After all, as the authors note, conservatives held similar views on labor regulation thirty years ago, when very few questioned the orthodox view of Lochner.

Colby and Smith instead emphasize changes in originalist constitutional thought over the last two decades. One is the shift from “original intent” originalism to “original meaning.” The former emphasizes the specific intentions of the framers of constitutional provisions, while the latter focuses on the public understanding of the provision in question at the time of enactment—either that of the general public, that of legal experts, or of hypothetical “reasonable” readers. From the standpoint of original meaning more so than original intent, there is extensive evidence that the Fourteenth Amendment was understood at the time as protecting a variety of property rights and economic liberties. Legal historians such as Ryan Williams and David Bernstein have shown that “substantive due process” protections for economic rights were not invented by the Lochner Court, but rather had a long history in American legal thought, including in the period around the time of the enactment of the Fourteenth Amendment. Whether or not “substantive due process” is a sound doctrine, it is not an ahistorical oxymoron, as previous generations of conservative originalists believed.

A second development stressed by Colby and Smith is the renewed interest in the Privileges or Immunities Clause of the Fourteenth Amendment among originalist legal scholars of a variety of ideological persuasions. There is a great deal of historical evidence indicating that the Clause was intended, at least in part, to protect economic liberties and property rights, and that its near-evisceration in the 1873 Slaughterhouse Cases was a serious mistake.

The notion that this Clause protects economic freedoms was not invented by modern conservatives and libertarians. It was forcefully defended in Justice Stephen Field’s famous dissent in Slaughterhouse, which attracted four votes, including that of Chief Justice Salmon P. Chase, one of the architects of the Republican Party “free labor” school of legal thought that heavily influenced the Fourteenth Amendment. But only in recent decades have modern constitutional law scholars begun to focus on this aspect of the Amendment. For conservative originalists who continue to oppose “substantive due process,” the Privileges or Immunities Clause offers a pathway for strengthening protection for economic liberties without relying on the Due Process Clause, and indeed without reconsidering Lochner directly.

Many left of center scholars also hope for a revival of the Privileges or Immunities Clause, though most of them do not want that revival to include substantial protection for economic liberties. The fact that there is such widespread criticism of the Slaughterhouse Cases strengthens the potential attractiveness of the Privileges or Immunities Clause as a vehicle for reviving judicial protection for economic liberties. While left of center jurists might oppose using the Clause for that purpose, on a variety of grounds, they cannot easily dismiss it out of hand, as would likely be the case with attempts at a direct revival of Lochner.

As Colby and Smith recognize, conservatives who wish to restore constitutional protection for economic liberties may well be influenced by their political and ideological support for this cause. In that respect, they are similar to liberals and others for whom ideological and legal commitments are not completely separate. But the authors also emphasize that they do not wish to “denigrate conservatives as unprincipled opportunists who consciously seek to subjugate the law to their political whims. To the contrary, we give credit to conservatives for abstaining from action in the absence of a strong theoretical foundation. . . . When conservative legal theory did not support their politically favored outcomes, conservatives laudably chose mostly to respect their jurisprudential commitments, at least in the case of unenumerated economic rights.” They interestingly contrast this tendency in conservative legal thought with the development of liberal constitutional thought from the 1930s to the 1960s, when liberal judges began to use judicial review to aggressively enforce a variety of “noneconomic” rights, before liberal constitutional theorists had articulated a strong and coherent rationale for breaking with early twentieth-century Progressives’ emphasis on across-the-board judicial deference.

Overall, Colby and Smith’s article is the most complete, thorough, and fair-minded analysis of the recent revival of support for judicial protection of economic liberties. Their careful, balanced approach is particularly commendable in light of he fact that they are not themselves advocates of either originalism or political conservatism.

I do, however, have a few reservations about their analysis. In some places, they posit too great a break between today’s conservative originalism and that of thirty to forty years ago. Colby and Smith suggest that earlier conservative judges and legal theorists were “concerned primarily with limiting judicial power,” while those of today have to a large extent broken with that commitment.

It is unquestionably true that, in the 1980s, conservatives such as Robert Bork, Antonin Scalia, and Attorney General Edwin Meese emphasized the need for “judicial restraint” and deference to the democratic process. But they also simultaneously advocated strong judicial enforcement of the original meaning of the Constitution, including in many cases where doing so required increased judicial intervention, rather than less. As far back as the 1970s, conservative Supreme Court Justice William Rehnquist wrote a series of opinions advocating stronger judicial enforcement of property rights and federalism-based limits on congressional power. Indeed, conservative Supreme Court justices’ partial revival of judicial enforcement of the Takings Clause of the Fifth Amendment since the 1980s in many ways prefigures more recent arguments for a reconsideration of economic liberties.

During the 1970s and 1980s, conservative originalists did not focus much on the tension between their advocacy of judicial deference to the democratic process and their advocacy of enforcement of the original meaning. More recently, originalists have had to confront that potential contradiction. While a few have chosen to subordinate originalism to judicial deference or to argue (increasingly implausibly) that there is no tension between the two, more have chosen originalism over deference when the two seem to conflict.

Another relative omission in Colby and Smith’s account is their downplaying of the fact that many of the leading originalist thinkers of the last twenty years, most notably Georgetown law professor Randy Barnett, have been libertarians rather than conservatives. Many younger right-of-center lawyers and legal scholars have also been influenced by the Institute for Justice’s effective advocacy of judicial protection for economic liberties and property rights. The libertarian public interest firm has litigated many high-profile test cases on these issues, many of them pitting poor and politically weak clients against powerful interest groups, thereby undercutting the traditional perception of judicial review of economic liberties as merely a tool for the rich. These developments have coincided with a general libertarian trend in right of center American thought over the last decade or so.

Relative to most conservatives, libertarians are less wary of the use of judicial review to constrain the legislative and executive branches, including for purposes of protecting a wide range of non-economic freedoms, some of which are anathema to social conservatives. Libertarians are also less likely than conservatives to be haunted by the specter of Roe v. Wade. While many libertarian legal scholars disagree with that decision, few see it as an evil of the same magnitude as it is in the minds of many conservatives. Many libertarians are pro-choice in their political views, and even most of those who are pro-life tend not to assign as much weight to the abortion issues as conservatives often do.

As Colby and Smith recognize, we are still far away from a broad consensus in favor of more than the most minimal judicial protection for economic liberties under the Fourteenth Amendment, even on the political right. When and if such a consensus does emerge among libertarians and conservatives, that may still not be sufficient to ensure robust protection for the rights in question.. History suggests that strong judicial protection for constitutional rights can only be firmly established if it achieves a measure of support in both major parties and on both sides of the political spectrum.

Thus, we are still a long way away from a true Lochner revival. Even if such a revival does happen, it would be far from the end of extensive government regulation of economic transactions. As Colby and Smith note, the Lochner-era Supreme Court upheld far more economic regulations than it struck down, usually upholding laws where the government presented substantial evidence that it was combating a genuine threat to public health and safety.

Colby and Smith’s article is not intended to address the normative debate over judicial protection for economic freedoms. Both sides in that debate have a variety of strong arguments, and we are unlikely to get a definitive resolution anytime soon. But they do provide a valuable account of why a serious debate over this issue has reemerged in the first place.

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Cite as: Ilya Somin, A Revival of Lochner?, JOTWELL (June 15, 2015) (reviewing Thomas Colby and Peter J. Smith, The Return of Lochner, 100 Cornell L. Rev. 527 (2015)),