Lochner Era - Jurisprudence


The constitutional jurisprudence of the Lochner era is marked by the use of substantive due process to invalidate legislation held to infringe on economic liberties, particularly the freedom of contract. Between 1899 and 1937, the Supreme Court held 159 statutes unconstitutional under the due process and equal protection clauses (excluding civil rights cases), and another 25 were struck down in reference to the due process clause coupled with some other provision. The Court's interpretation of the due process clause during the Lochner era has been dubbed in contemporary scholarship as "economic substantive due process". This doctrine can be divided into three elements:

  • 1. The due process clauses of the Fifth and Fourteenth Amendments, which limits the federal and state government from making laws that deprive "any person of life, liberty, or property without due process of law", requires stringent protection for economic liberties, in particular the liberty to "purchase and sell labor".
  • 2. These liberties are not absolute and can be regulated for a limited set of purposes, including the "safety, health, morals, and general welfare of the public."
  • 3. The Court may examine legislation in order to ensure that the means used by the legislature to further its legitimate purposes are well-designed to achieve those purposes and not unduly restrictive of market choices.

In addition, the Court limited the power of the federal government under the Commerce Clause; restricting Congress' ability to regulate industrial production. It also showed a marked hostility towards labor unions and consistently voted to invalidate laws that aided union activity. This body of doctrine has been characterized as "laissez-faire constitutionalism", although this has been contested.

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. Michael J. Phillips writes that "due largely to their 'familial' nature, these two cases helped legitimize the modern substantive due process decisions creating the constitutional right to privacy."

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