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Parrying with the Courts: Analyzing the Lochner Era through the Eyes of Organized Labor
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over the activism of the Lochner justices has been greatly exaggerated.
Other scholars have demonstrated that the Lochner majority did not create “liberty of
contract” from whole cloth. The justices were in fact drawing on a well-established belief.
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While still other scholars have portrayed Lochner and its ilk as an attempt on the part of the
Supreme Court to maintain longstanding constitutional norms of state neutrality and equality,
marked by a strong resistance to “class legislation,” that was becoming increasingly untenable
given the continued development of capitalism.
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According to this narrative, the Supreme Court
was trapped in a futile negotiation between an old constitutional order and a new world order that
occasionally bore bitter fruit such as Lochner. The characterization of the Lochner justices as
disingenuously interpreting the Constitution to reach preferred outcomes, according to this
analysis, has been unfair.
(1913), Charles Warren, "The Progressiveness of the United States Supreme Court," Columbia Law Review 13 (1913). See also Robert E. Cushman, "Social and Economic Interpretation of the Fourteenth Amendment," Michigan Law Review 20 (1922), Louis M. Greeley, "The Changing Attitude of the Courts toward Social Legislation," Illinois Law Review 5 (1910), Charles M. Hough, "Due Process of Law Today," Harvard Law Review 32 (1919).
7
Eric Foner contends that “freedom of contract” ideals developed out of the anti-slavery tradition
and had infused labor rhetoric with a commitment to “self ownership” from that point on. See Eric Foner, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party before the Civil War (New York,: Oxford University Press, 1970), Eric Foner, Politics and Ideology in the Age of the Civil War (New York: Oxford University Press, 1980). See also William E. Forbath, "The Ambiguities of Free Labor - Labor and the Law in the Gilded Age," Wisconsin Law Review, no. 4 (1985), David M. Gold, "Redfield, Railroads and the Roots of 'Laissez-Faire Constitutionalism'," American Journal of Legal History 27 (1983), Charles W. McCurdy, "The Roots of Liberty of Contract Reconsidered: Major Premises in the Law of Employment, 1867-1937," Supreme Court Historical Society 1984 (1984), William E. Nelson, "The Impact of the Antislavery Movement Upon Styles of Judicial Reasoning in Nineteenth-Century America," Harvard Law Review 87 (1974).
8
Howard Gillman studies in-depth the long-standing constitutional commitment to principles of
equality and resistance to class or partial legislation that influenced the jurisprudence of the Lochner Court. See Gillman, The Constitution Besieged : The Rise and Demise of Lochner Era Police Powers Jurisprudence. See also Michael Les Benedict, "Laissez-Faire and Liberty: A Re-Evaluation of the Meanings and Origins of Laissez-Faire Constitutionalism," Law and History Review 3 (1985), David M. Gold, The Shaping of Nineteenth-Century Law : John Appleton and Responsible Individualism, Contributions in Legal Studies, No. 57 (New York: Greenwood Press, 1990), William E. Nelson, The Fourteenth Amendment : From Political Principle to Judicial Doctrine (Cambridge, Mass.: Harvard University Press, 1988), Cass R. Sunstein, "Lochner's Legacy," Columbia Law Review 87 (1987).
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| | Authors: Martens, Allison. |
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over the activism of the Lochner justices has been greatly exaggerated.
Other scholars have demonstrated that the Lochner majority did not create “liberty of
contract” from whole cloth. The justices were in fact drawing on a well-established belief.
While still other scholars have portrayed Lochner and its ilk as an attempt on the part of the
Supreme Court to maintain longstanding constitutional norms of state neutrality and equality,
marked by a strong resistance to “class legislation,” that was becoming increasingly untenable
given the continued development of capitalism.
According to this narrative, the Supreme Court
was trapped in a futile negotiation between an old constitutional order and a new world order that
occasionally bore bitter fruit such as Lochner. The characterization of the Lochner justices as
disingenuously interpreting the Constitution to reach preferred outcomes, according to this
analysis, has been unfair.
(1913), Charles Warren, "The Progressiveness of the United States Supreme Court," Columbia
Law Review 13 (1913). See also Robert E. Cushman, "Social and Economic Interpretation of the
Fourteenth Amendment," Michigan Law Review 20 (1922), Louis M. Greeley, "The Changing
Attitude of the Courts toward Social Legislation," Illinois Law Review 5 (1910), Charles M.
Hough, "Due Process of Law Today," Harvard Law Review 32 (1919).
7
Eric Foner contends that “freedom of contract” ideals developed out of the anti-slavery tradition
and had infused labor rhetoric with a commitment to “self ownership” from that point on. See
Eric Foner, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party before the
Civil War (New York,: Oxford University Press, 1970), Eric Foner, Politics and Ideology in the
Age of the Civil War (New York: Oxford University Press, 1980). See also William E. Forbath,
"The Ambiguities of Free Labor - Labor and the Law in the Gilded Age," Wisconsin Law
Review, no. 4 (1985), David M. Gold, "Redfield, Railroads and the Roots of 'Laissez-Faire
Constitutionalism'," American Journal of Legal History 27 (1983), Charles W. McCurdy, "The
Roots of Liberty of Contract Reconsidered: Major Premises in the Law of Employment, 1867-
1937," Supreme Court Historical Society 1984 (1984), William E. Nelson, "The Impact of the
Antislavery Movement Upon Styles of Judicial Reasoning in Nineteenth-Century America,"
Harvard Law Review 87 (1974).
8
Howard Gillman studies in-depth the long-standing constitutional commitment to principles of
equality and resistance to class or partial legislation that influenced the jurisprudence of the
Lochner Court. See Gillman, The Constitution Besieged : The Rise and Demise of Lochner Era
Police Powers Jurisprudence. See also Michael Les Benedict, "Laissez-Faire and Liberty: A Re-
Evaluation of the Meanings and Origins of Laissez-Faire Constitutionalism," Law and History
Review 3 (1985), David M. Gold, The Shaping of Nineteenth-Century Law : John Appleton and
Responsible Individualism, Contributions in Legal Studies, No. 57 (New York: Greenwood
Press, 1990), William E. Nelson, The Fourteenth Amendment : From Political Principle to
Judicial Doctrine (Cambridge, Mass.: Harvard University Press, 1988), Cass R. Sunstein,
"Lochner's Legacy," Columbia Law Review 87 (1987).
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