Conservative views

This month marks the 110th anniversary of the U.S. Supreme Court’s ruling in Lochner v. New York, in which the Court struck down an economic regulation on the grounds that it violated the 14th Amendment right to liberty of contract. In the early decades of the 20th century, Lochner served as a key precedent in a variety of cases which limited government power, including the Supreme Court’s 1917 decision invalidating a Jim Crow residential segregation law. In 1937, however, in one of the signal triumphs of New Deal governance, the Supreme Court reversed course and rendered Lochner a dead letter, declaring that henceforth the courts would no longer offer any judicial protection for liberty of contract in the face of regulatory state action.

Not surprisingly, that New Deal judgment remains widely popular on the legal left. What is surprising perhaps, is that this judgment also happens to be quite popular on the legal right. Indeed, from Chief Justice John Roberts to the late Robert Bork, many of modern America’s top conservative legal thinkers have attacked Lochner and revealed their own broad intellectual harmonies with the New Deal forces that overturned it.

Why are these conservatives hostile to Lochner? Here’s the answer supplied by Robert Bork. The problem with Lochner, Bork argued, is that it involved the judicial protection of an individual right—liberty of contract—that appears nowhere in the text of the Constitution. And as far as Bork was concerned, when “the Constitution does not speak, ” we are “all at the mercy of legislative majorities.” The Supreme Court, Bork said, must respect the will of those majorities and defer to their legislative enactments.

Today’s libertarians, by contrast, reject the Bork-New Deal approach. As the libertarians see it, the Constitution does protect unenumerated rights, as the language of the 9th Amendment makes evident. Furthermore, as the libertarians argue, once you take a careful look at the text and history of the 14th Amendment, including that amendment’s origins in the free labor philosophy of the anti-slavery movement, it becomes equally evident that the concept of economic liberty has deep roots in the constitutional firmament.