Lochner era

In order to mask this fit of legally unjustified, intellectually dishonest judicial activism, the progressive interpretation runs, judges invented novel economic "rights" – most notably "substantive due process" and "liberty of contract" – that they engrafted upon the Due Process Clause of the Fourteenth Amendment.Citing more recent scholarship since the 1970s, Lindsay advances a more modern interpretation of the Lochner era:[8]The Lochner era is best understood not as a politically motivated binge of judicial activism, but rather as a sincere and principled, if sometimes anachronistic, “effort to maintain one of the central distinctions in nineteenth-century constitutional law — the distinction between valid economic regulation” calculated to serve the general good and invalid “class” legislation designed to extend special privileges to a favored class of beneficiaries.Cass R. Sunstein, in an influential essay from 1987, describes the Lochner era as the result of a Court which believed market ordering under common law to be part of nature rather than a legal construct and sought to preserve natural distribution of wealth against redistributive regulations:[9] The Lochner Court required government neutrality and was skeptical of government "intervention"; it defined both notions in terms of whether the state had threatened to alter the common law distribution of entitlements and wealth, which was taken to be a part of nature rather than a legal construct.

These ideas, according to Gillman, had been inherited by the Lochnerian judges, whose jurisprudence reflected a good faith attempt to preserve a tradition that was increasingly being undermined by changing industrial relations in the United States.

[12] Bernstein's view is that the Lochner era demonstrates "the Justices' belief that Americans had fundamental unenumerated constitutional rights" which were protected by the due process clause of the Fourteenth Amendment.

[15] This doctrine can be divided into three elements:[16] In addition, the Court limited the power of the federal government under the Commerce Clause; restricting Congress' ability to regulate industrial production.

[8][12] Scholars have noted that when the Fourteenth Amendment was adopted in 1868, 27 out of 37 state constitutions had provisions which typically said: "All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring and possessing and protecting property: and pursuing and obtaining safety and happiness."

As such clauses were "deeply rooted in American history and tradition," they likely informed the original meaning of the scope and nature of the fundamental rights protected by the Fourteenth Amendment in the eyes of Lochner-era Justices.

[19] It should also be noted that two early cases that use substantive due process to protect civil liberties, Pierce v. Society of Sisters and Meyer v. Nebraska, were decided during the Lochner era.

[22] In West Coast Hotel, Justice Owen Roberts, who had previously voted to strike down similar legislation, joined the wing more sympathetic to the New Deal and upheld a Washington state law setting a minimum wage for women.

Roosevelt believed that his overwhelming popular victory in the 1936 election had persuaded Roberts to sideline his own political beliefs and side with Chief Justice Hughes on New Deal cases.

In Cushman's view, the distinctive laissez-faire constitutionalism of the Lochner era eroded after World War I, as high unemployment made regulation of labor relations an increasingly pressing concern.

[27] The Lochner era has been criticized from the left for judicial activism, routinely overturning the will of Congress, and also for the Court's failure to allow the political process to redress increasingly unequal distributions of wealth and power.

[31] Richard A. Epstein has contested the widespread allegation of judicial activism, stating that "[t]he conceptual defense of the Lochner era is much stronger on structural grounds than its manifold critics commonly suppose.

[34] The Lochner era has notably been spotlighted by a number of non-American legal authorities as a cautionary tale of judicial overreaching, including Arthur Chaskalson, Antonio Lamer and Aharon Barak.