Lochner v. New York
198 U.S. 45 (1905)
Rule: A state may not regulate the working hours mutually agreed upon by employers and employees as
this violates their Fourteenth Amendment right to contract freely under the Due Process Clause
Majority:
 Holds that state police powers cannot infringe on one's liberty to contract under the 14th
amendment due process clause
o Note: this is later overturned
 Defining feature of the Lochner Era: this holding allows courts to overrule laws that limit ones
freedom to contract
 This embraces a laissez faire economic theory (free market); anytime any law attempts to
regulate the workplace, it is an infringement on the free market
 Natural law —> contract rights are implicit (substantive economic due process)
Dissent: Holmes
 Note: the majority of New Yorkers actually wanted this statute- it was passed unanimously
 Manipulating the economy should not done by the courts, but should be left to the legislature
to accurately reflect the will of the people
o Note the time period- early 1900s, industrial revolution, shitty working conditions
 Holmes then goes on to describe examples off all the times 'liberty' to contract is infringed upon
but was ok in the courts eyes to show that this is clearly a policy issue (and super subjective)
 This is no different than Sunday laws or usuary laws in regulating the free market, except for
that those policies aligned with the courts moral opinions
o What is and isn't an acceptable infringement on one's personal liberties was decided as
a matter of policy
o Such cases are not decided by a 'singular articulate premise,' but rather something that
is 'more subtle' (re: no single talisman, Cleburne)
o As a result, the constitution could not have decided these cases- 'general propositions
do not decide concrete cases,' and the majority opinion is a pretense
 Contractual freedom is not absolute
o Requires a balancing test of state police powers and individual right to contract
o Majority falsely reduces this to a single issue
Right to contract is not implicit in the constitution; states create contractual rights
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o Contracts are the states doing because a promise does not become a contract unless the
state choses to enforce it
Compare: Cleburne Living Center
 No single talisman for 14th amendment due process cases
 Calls on experience to discern issues
 Criticizes the 'singular major premises' (re: 'a page of history is worth a volume in logic')
Is Holmes' Argument Dangerous? Kinda!
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This argument is the birth of formalism (legal realism)
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In choosing which principal to start with (either liberty to contract or state police powers) the
court is making a pre determination on the outcome of the case
o Holmes doesn’t give any info about how to choose where to start- 'something more
subtle;' 'institution'
o Judges shouldn’t use this, the legislature should. Judges should only be using 'ordered
principals'
o This creates a scale with state police powers on one side and 14th Liberty/DP on the
other (birth of the whole balancing test bs; see takings but from a con law perspective)
Marshall's Cleburne Dissent: Need social context — Brown
o Brown doesn’t avoid constitutional principals, because that logic was criticized at the
time it was argued (starting with this Holmes dissent)
o Social context as reasoning is solid logic in this time period despite that being what
brown is criticized for now
Holmes believes that judges, as unelected officials, should only start with a premise and move
towards a conclusion (linear logic); makes an argument for more deference to the legislator,
which lowers the standard of scrutiny
Calls into question anytime the judiciary has a counter majoritarian opinion (isnt that the point
of life tenure? Problem here)
o Judges shouldn't be taking into consideration social contexts
Legal Positivism (realism): Rights are shaped by law
Lochner Era
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Gave a substantive due process right to contract
o Exception: Oregon laundress case
Would strike down state laws that favor a given economic theory; Aristocrats on court imposing
conservative economics on people and preserving rights for the already wealthy
Tried to preserve laissez fair economics (free market) at a time workers were suffering
(industrial revolution)
'A perversion of the 14th Amendment'
According to Holmes, courts should differ to the legislator UNLESS it is 'reasonable' (re: Plessy)
End of Lochner
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Tides begin to turn against substantive due process with Nebbia v. NY in 1934, marking the end
of substantive economic due process
West Coast Hotels v. Parrish formally reverses Lochner in 1937, giving rational basis review to
economic laws regarding contracting
New Deal needs rational basis to survive
Williamson v. Lee Optical: Courts wary of inventing new rights, gives this case rational basis
review
REA v. NY (1949): Challenge to a statute mandating that truck advertisements in NYC much
match the trucks contents on the basis that it will reduce driving distractions (this also gets
rational basis review, and hint this is not rational)
Skinner: Avoids the issue of substantive due process for fear of reviving the Lochner era, but still
favors judicial restraint
New Problems after Holmes' Lochner Dissent
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Choosing: McDonald, how do we choose?
Tradition: Court should stand for 'timeless' principals
Majoritarian/Counter Majoritarian check: Should they change with the times, re: Article III? If
the courts follow the majoritarian view, then we have 3/3 majoritarian branches of the gov't
Natural Law v. Majoritarian View
On what basis can we say that Brown was rightly decided, but Lochner was wrong (despite
them both being based on 'timeless fundamental principals'?
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How can this be reconciled? Or is it just political?
Look to Plessy, Lochner for answers
If the question is regarding a discrete or insular minority, always look to Carolene Products
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Tells us what a good reason for substantive due process to be involved