Yesterday Sen. Ted Cruz (R-Texas) presided over a Senate subcommittee hearing titled "With Prejudice: Supreme Court Activism and Possible Solutions." Cruz set the tone in his opening statement, lambasting the Supreme Court for its "judicial activism," for its "long descent into lawlessness," for behaving like a "super legislature," and for its "imperial tendencies."
Pretty strong stuff. Unfortunately, Cruz undermined his own case by getting the basic facts wrong about one of the very "imperial" rulings he was trying to discredit. That ruling came in the 1905 case of Lochner v. New York, which Cruz, who was clearly reading from a prepared speech, erroneously described as an example of when "an activist Court struck down minimum wage laws" on behalf of an individual right "that has no basis in the language of the Constitution."
In reality, Lochner struck down a law regulating the number of hours that bakery employees were permitted to work—the case had absolutely nothing to do with wage controls. And whether Cruz is aware of it or not, there is in fact plenty of evidence showing that the unenumerated right to liberty of contract—the constitutional right that the Court protected in Lochner—does have a basis in the 14th Amendment.
If Cruz is interested in learning the actual facts of this important case, perhaps he should ask his colleague Sen. Rand Paul (R-Ky.) for a quick tutorial. Paul has accurately described the virtues of Lochner on more than one occasion.
Related: Why Lochner Isn't a Dirty Word