Writing in The Wall Street Journal, Northwestern law professor John McGinnis reviews conservative legal scholar Hadley Arkes’ new book Constitutional Illusions & Anchoring Truths: The Touchstone of Natural Law. One passage in particular jumped right out:
One of the many virtues of "Constitutional Illusions & Anchoring Truths" is that Mr. Arkes applies his ideas to particular cases, avoiding the airiness of mere theory and arriving at pleasingly contrarian positions. He defends, for instance, the decision of Lochner v. New York (1905), a case that has become an emblem of judicial overreach. In Lochner the Supreme Court held that the state could not limit the working hours of employees in bakeries. Mr. Arkes finds the linchpin of the case in natural law—the natural right of a worker or owner to pursue his occupation. He concedes that this right must sometimes yield to public regulation, but he shows that the hours-limiting law at issue in Lochner, struck down by the court, had no health or safety rationale. It was intended merely to favor unions and large companies at the expense of small businesses run by immigrants, like Joseph Lochner himself.
This is noteworthy because most legal conservatives—not to mention virtually all legal liberals—intensely dislike Lochner and frequently denounce it as one of the Court’s worst decisions. The truth is that Lochner deserves none of the vilification it has long received and, as Arkes apparently explains in his new book, was actually an important judicial check against special interest legislation as well as a defense of the fundamental right to liberty of contract.
For more on conservative legal hostility to Lochner and economic liberty, see my article "Conservatives v. Libertarians."